10.6092/issn.1561-8048/15210
The categorisation of platform workers as employees, self-employed or a tertium genus is arguably the single most decisive element determining their legal position across countries. The contribution provides an insight into the status quo in European jurisdictions, based on a comprehensive review of national case law on the classification of various types of platform workers. On this basis, it offers some considerations on the viability of an approach as proposed by the European Commission (which focuses on a legal presumption of employee status) as well as the more general question of realistic legislative strategies to ensure platform workers the protection they need.
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Christina Hießl
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Italian Labour Law e-Journal
Social Policies
The legal status of platform workers: regulatory approaches and prospects of a European solution
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2022-07-15
2022-07-21
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Christina Hießl
2022/07/21
10.6092/issn.1561-8048/15210
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The legal status of platform workers: regulatory approaches and prospects of a European solution
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The legal status of platform workers: regulatory approaches and                       Italian Labour Law e-Journal
prospects of a European solution                                                             Issue 1, Vol. 15 (2022)
Christina Hießl                                                                                    ISSN 1561-8048
chiessl@yonsei.ac.kr                                                https://doi.org/10.6092/issn.1561-8048/15210




        The legal status of platform workers: regulatory
       approaches and prospects of a European solution
                                                Christina Hießl*

 1. Introduction. 2. Employee, self-employed, or…? 2.1. Relevant areas of law. 2.2. Third or
 intermediate categories. 3. Employed by whom? 4. The role of legal presumptions. 4.1.
 Generally applicable presumptions. 4.2. Specific provisions on platform work. 5. Case law
 developments. 5.1. Overview. 5.2. Outcomes for different types of platforms. 5.3. Criteria
 and innovations. 6. The Consequences of a changed categorisation. 7. Discussion.


                                                         Abstract
     The categorisation of platform workers as employees, self-employed or a tertium genus is
     arguably the single most decisive element determining their legal position across countries. The
     contribution provides an insight into the status quo in European jurisdictions, based on a
     comprehensive review of national case law on the classification of various types of platform
     workers. On this basis, it offers some considerations on the viability of an approach as proposed
     by the European Commission (which focuses on a legal presumption of employee status) as well
     as the more general question of realistic legislative strategies to ensure platform workers the
     protection they need.

     Keyword: Labour law; Employee/worker status; Platform work; Gig economy; Comparative
     law; EU law; Case law analysis; Social policies.



 1. Introduction.

     By putting forward its proposal on improving working conditions in platform work
 (hereinafter: the Proposed Directive),1 the European Commission has, for the first time,
 undertaken to push for the harmonisation of (one aspect of) one of the most fundamental
 pillars of national labour law: the delimitation of employee status. It thereby attempts to
 address the legal conundrum resulting from a situation in which the rise of the gig economy
 “produces” increasing numbers of workers facing important vulnerabilities, while their work
 patterns are difficult to square with traditional national concepts of employee status. Whether


 * Goethe University of Frankfurt & Yonsei University of Seoul (as of 1 October 2022: Leuven University). This
 essay has been submitted to a double blind peer review. This publication has received financial support from
 the European Union Programme for Employment and Social Innovation “EaSI” (2014-2020). More
 information on the European Union is available on the Internet (http://www.europa.eu).
 1 Proposal for a Directive of the European Parliament and the Council on improving working conditions in

 platform work, COM(2021) 762 final. The European Parliament has recently approved the proposal with
 several requests for amendment, while the Council’s position has not been published yet.
    Christina Hießl                                                                   Italian Labour Law e-Journal
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                                                                                             Section: Miscellaneous




or not the approach of introducing a legal presumption, as envisaged in Articles 4 et seq. of
the Proposed Directive, is a panacea – or even capable of triggering any significant
improvement – is subject to debate. To inform this discussion, it seems crucial to take a step
back and examine the current approach of European legal systems to the phenomenon of
platform work and the consequences of altering the status assigned to platform workers in
this context.
    In what follows, the present contribution will present insights, based notably on the
author’s in-depth analysis of case law on the status of platform workers in Europe, regarding
the legal status quo of the classification of platform workers (section 2), the identification of
the employer (section 3) and the role of legal presumptions (section 4). Section 5 gives an
overview of the already observable and anticipated future results of applying those legal
standards to platform types and models as they currently exist on the European market,
followed by a discussion of the past and expected future consequences of a changed
qualification of platform workers. Section 7 concludes by offering some considerations on
the viability of regulatory approaches to determine the status – and resulting rights – of
platform workers with a view to the particularity of various platform models and the resulting
vulnerabilities of individuals offering their labour in this context.


2. Employee, self-employed, or…?

    Comparing concepts of worker or employee status has always been among the most
complex and fascinating tasks of comparative labour law research. Despite the invaluable
contribution of comparative compilations,2 the multifaceted, fluid nature of these concepts
across jurisdictions makes it difficult to grasp meaningful differences in a structural manner.
If anything, the evolving case law assessing the status of platform workers (see infra in section
5) has reinforced dynamic approaches to the notion of employee in various countries, putting
previous findings on the comparative restrictiveness of certain concepts into question.
    To this date, those concepts remain partly or wholly unwritten in a number of European
countries;3 in others, the criteria stipulated in statutory law are so vague that they appear
almost meaningless without in-depth knowledge of their application by courts and
administrative bodies.4 Where statutory definitions have been amended or added in recent
years, this has often amounted to a codification of pre-existing case law rather than a
conscious steering or adjustment by the legislator.5 This is effectively also true for the famed


2 First and foremost, the comprehensive overview provided in Waas B., Heerma van Voss G. (eds.), Restatement
of Labour Law in Europe: The Concept of Employee, Volume I, Oxford, Hart Publishing, 2017.
3 E.g. in Austria, France, Ireland, Luxembourg or Sweden – see Hießl C., Case Law on the Classification of Platform

Workers: Cross-European Comparative Analysis and Tentative Conclusions, 2021, available at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3839603 (subsections 1.1.1, 1.5.1, 1.7.1, 1.9.1, 1.13.1),
edited version published in Comparative Labour Law & Policy Journal 42:2 (2022).
4 Therefore, also major innovations are regularly exclusively case law-based. Cf. the example of the Dutch

Supreme Court abandoning the doctrine of the relevance of the will of the parties (Hoge Raad, 6 november
2020, ECLI:NL:HR:2020:1746 (X/Gemeente Amsterdam).
5 As in Germany – see the revised wording of Section 611a of the Civil Code, in force since 2017.



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Californian ABC test (see infra at 4.1), which was developed by the California Supreme
Court.6 Particularly in relation to this test, which has often been discussed in the comparative
literature as a possible avenue for a profound reconsideration of existing approaches, some
observers have expressly called for the legislature to play a more active role in delineating the
inclusiveness of the notion of employee.7
    And while the concept of worker/employee for the purpose of the application of EU law
has arguably been streamlined by the jurisprudence of the CJEU,8 effectively resulting in the
application of a largely uniform notion across different directives, the Proposed Directive
would be the first to interfere with the scope of the concept under national law.


2.1. Relevant areas of law.

   The determination of a worker’s status is of key relevance not only to determine the
applicability of labour law. While the major share of litigation which led to a decision on a
platform worker’s status so far9 have concerned labour law disputes between the parties of a
contract, 10 a significant number have concerned rights and duties in the area of social
security, 11 health and safety 12 or collective labour relations, 13 and more rarely tax 14 or
competition law 15 other administrative regulations 16 or even criminal law. 17 Effectively, a
majority or even all of the platform work-related cases decided so far have not been brought
by the individual workers concerned (but rather institutional actors, trade unions or



6 Dynamex v. Superior Court of Los Angeles, California Supreme Court, 4 Cal. 5th 903 (2018).
7 See Davidov G., Alon-Shenker P., The ABC Test: A New Model for Employment Status Determination?, forthcoming
in Industrial Law Journal, Volume 51, Issue 2, June 2022.
8 Cf. the various decisions in which the Court has effectively recurred to its Lawrie Blum concept despite a clear

reference to national law in the applicable Directive (e.g. Case C-393/10 O’Brien [2012] ECLI:EU:C:2012:110;
Case C-212/04 Adeneler [2012] ECLI:EU:C:2006:443).
9 See infra at 5.1 for references to the research on which these findings are based.
10 Notably in France, Germany, the Netherlands, Spain, and the UK.
11 Particularly in Belgium and Spain. Most recently Tribunal du travail francophone de Bruxelles, Dec. 8, 2021,

JT 08 December 2021 (Deliveroo); Juzgado de lo Social de Córdoba, Sección 3, 19 May 2022, Nº 662/2020,
SJSO 693/2022 - ECLI:ES:JSO:2022:693 (Glovo).
12 E.g. in Italy, Luxembourg, Norway, Spain and Sweden. Most recently Trib. Trib. Torino, sez. lav., 18

novembre 2021, n. 4991/2020 R.G.L. (UberEats); Förvaltningsrätten i Malmö, 2022, n. 13356-20 (Tiptapp).
13 E.g. in the Netherlands and the UK. Most recently The Independent Workers Union of Great Britain v. The

Central Arbitration Committee [2021] EWCA Civ 952 (Deliveroo); Rechtbank Amsterdam, 13 September 2021
(Federatie Nederlandse Vakbeweging/ Uber B.V.) ECLI:NL:RBAMS:2021:5029.
14 In Denmark and Ireland. Most recently recently Bindende svar fra Skatterådet, 25 januar 2022,

https://www.hk.dk/-/media/images/om-
hk/sektorer/privat/hkprivat/pdf/2022/wolt_skatteraadets_afgoerelse.pdf?la=da&hash=23CA29F1E4E7CE
3AA1584DAC3DA569E3 (Wolt); Karshan (Midlands) Trading as Dominos Pizza v. Revenue Commissioners
[2022] IECA 124.
15 In Denmark and France. Most recently Konkurrencerådet, 26 August 2020, Konkurrencerådsafgørelse (Hilfr,

Happy Helpers).
16 As in Belgium, Luxembourg or Switzerland. Most recently Tribunal d'arrondissement de Luxembourg, 4 may

2021, 955/2021 (Wedely); Tribunal federal, Arrêt du 30 mai 2022, 2C_575/2020 (UberEats).
17 As in France and Italy. Most recently Cass. crim., 22 june 2021, Bull. civ., ECLI:FR:CCASS:2021:CR00778

(Cliq and Walk); Trib. Torino, sez. lav., 18 novembre 2021, n. 4991/2020 R.G.L. (UberEats).

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competitors) in countries such as Austria, Denmark, Ireland, Luxembourg, Norway, Sweden
and Switzerland.
   The categorisation of workers in all these areas of law tends to be largely similar, but not
necessarily identical – so that e.g. a finding that an individual is to be treated as an employee
for tax, social security or competition law purposes does not automatically imply entitlements
under labour law. Effectively, differences exist even within the field of labour law – so that
e.g. a decision regarding health and safety protection does not necessarily predict the
existence and allocation of employers’ duties in the areas of minimum wage or working time
law.18


2.2. Third or intermediate categories.

    A further issue which significantly complicates the determination of a worker’s status is
the existence of classifications located between the poles of the “regular” dependent
employee and the fully independent self-employed service provider. Partly, it is a matter for
doctrine to decide whether a group which may be entitled to treatment as employees in some
but not all areas of the law – as described in the previous subsection – is identified as a
tertium genus. For instance, the Italian Cassation Court has rejected such identification for
“hetero-organised work”, despite confirming the far-reaching consequences of the
applicability of the legal provisions at issue.19 Also French self-employed platform workers,
whom the law entitles to a number of specific rights,20 are not usually identified as a “third
category”.21
    In a broad sense, almost all European jurisdictions know groups of employees with
reduced rights 22 or, more commonly, subgroups of the self-employed with certain
(additional) social rights. The latter frequently concern social security 23 and/or collective
bargaining entitlements,24 but the concrete scope of rights is highly country-specific. Thus,


18 As stressed e.g. in the Swedish and Norwegian decision, all of which concerned exclusively health and safety
obligations. Most recently Förvaltningsrätten i Malmö, 2021, n. 13356-20 (TaskRunner) and 2022, n. 13356-20
(Tiptapp).
19 Cass., sez. lav., 24 January 2020, n. 1663, Riv. It. Dir. Lav. 2020, 1, 76 (It.).
20 See Articles L. 7341-1 and Art. L. 7342-1 of the French Labour Code.
21 See Daugareilh I. et al., The platform economy and social law: Key issues in comparative perspective, ETUI, 2019,

https://www.etui.org/Publications2/Working-Papers/The-platform-economy-and-social-law-Key-issues-in-
comparative-perspective.
22 Such as those excluded from social security coverage – e.g. “mini-jobbers” in Austria and Germany (see e.g.

Section 8 (1) of the Fourth Book of the Social Code), or the groups identified by the Belgian Loi-programme
du 1 juillet 2016. The latter specifically targets those working via electronic platforms as a side occupation, up
to an annual income threshold. A much more far-reaching exclusion of platform workers has been overruled
by the Belgian Constitutional Court (Cour constitutionnelle, arrêt n° 53/2020 du 23 avril 2020).
23 E.g. Austrian employee-like persons (Section 4 (4) of the General Social Insurance Act), French self-

employed platform workers (Articles L. 7341-1 and Art. L. 7342-1 of the Labour Code), Italian hetero-organised
workers (Article 2 of Legislative Decree no. 81/2015) and coordinated collaborators (Article 409 (3) Code of
Civil Procedure), or Swedish dependent contractors
24 E.g. French self-employed platform workers, German employee-like persons (Section 12a (1) of Act on

Collective Agreements), Spanish economically dependent autonomous workers (Article 11.1 of the Statute of

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for instance, when comparing what well-known cases of reclassifications of platform workers
confirmed by last-instance courts have meant for the workers at issue, it appears that those
have paved the way for minimum wage protection both in Spain and in the UK. However,
while drivers in the UK have been reclassified from a status without dismissal protection to
another one with no dismissal protection either,25 riders in Spain were moved from a status
with limited protection to one with full dismissal protection,26 resulting in their reinstatement
in various cases.27


3. Employed by whom?

    Beyond the question whether a worker performs work in subordination, a crucial
determinant concerns the allocation of the role of the employer.28 In relation to platform
workers, uncertainties in this respect may arise in three constellations.29
    A minor issue in this regard are platform companies’ sometimes complex corporate
structures. Particularly in case of Uber, the situation is complicated by the involvement of
both the Dutch parent company and its national subsidiaries in its relation with drivers and
customers. Consequently, the entity identified as employer was the parent company in
France, but Uber London in the UK,30 and the Swiss social security administration changed
its target from Uber’s national subsidiary to the Dutch parent company after its original
decision was invalidated by the Social Court.31
     More crucial is the allocation of employer status between a platform company and local
subcontractors, which may organise its workforce. The impressive number of French cases
brought against the estate of companies in liquidation 32 illustrates notably ride-hailing
platforms’ tendency to use highly unsustainable companies as intermediaries; in Italy, an
UberEats subcontractor’s exploitative practices triggered criminal investigations. In that case,
a recent court ruling33 eventually found an employment relationship to exist directly between
the riders and the platform – just as the Spanish labour inspectorate found in its most recent
decisions on Cabify and Uber, which disregard the existence of a formal employment


the Self-Employed), Polish persons performing gainful work (Article 239 (2) of the Labour Code), Swedish
dependent contractors, and (limb (b) workers in the UK (Section 230(3)(b) Employment Rights Act).
25 See the Supreme Court’s ruling in Uber BV & Ors v Aslam & Ors [2021] WLR(D) 108, [2021] ICR 657,

[2021] UKSC 5.
26 See the Supreme Court’s judgment in S.T.S., Sept. 23, 2020 (n. 4746/2019) (Glovo).
27 See also subsection 2.3 of Hießl, C., The Classification of Platform Workers in Case Law: A Cross-European

Comparative Analysis, december 2021, forthcoming in Comparative Labor Law & Policy Journal, Volume 42.2, 2022
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3982738.
28 Cf. Risak M., Fair Working Conditions for Platform Workers: Possible Regulatory Approaches at the EU Level, Friedrich-

Ebert-Stiftung, 2017, 14.
29 See also subsection 2.5 of Hießl, nt. (27).
30 See e.g. Cass. soc., 4 March 2020, Bull. civ., ECLI:FR:CCASS:2020:SO0037 (Uber); Uber BV & Ors v Aslam

& Ors [2021] WLR(D) 108, [2021] ICR 657, [2021] UKSC 5.
31 Cf. Sozialversicherungsgericht Zürich June 10, 2018, UV.2017.00030 (Uber); and SUVA of July 5, 2019 (Uber).
32 E.g. CA Paris, Pôle 6 - chambre 11, 1er juin 2021, n° 18/11917 (Uber); CA Dijon, Chambre sociale, 6 janvier

2022, n° 20/00002 (Uber).
33 Trib. Torino, sez. lav., 18 November 2021, n. 4991/2020 R.G.L. (UberEats).



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contract with the platforms’ subcontractors.34 The Spanish example illustrates that such cases
of a requalification of the employer may not only give employees access to a more solvent
creditor for their outstanding entitlements, but also lead to the application of a more
favourable collective agreement.
   Finally, and perhaps most importantly, in case of platform services which are not
standardised to a significant degree, employer-like functions such as the determination of the
service and its remuneration, provision of tools and exercise of control may be located with
the customer rather than the platform. Needless to say, various protections under labour law
are of very limited effectiveness where the worker is not considered to be in a continuous
employment relationship with the platform, but rather to be concluding a series of very short
fixed-term contracts with different customers, who will often be private households (and
thus typically also outside the ambit of collective labour relations). Such contractual
arrangement is sometimes chosen notably by platforms offering cleaning services, and has
been confirmed in a part of the (scarce) case law on this platform type (see infra at 5.2).
    It therefore seems significant that the so far only second-instance court decision on
cleaning platforms35 has become one of the first36 to identify cleaners as temporary agency
workers – who thus benefit from an ongoing employment relationship with the platform,
but also concrete protections vis-à-vis the customer. Other forms of shared responsibilities
between the platform and customer have been contemplated only exceptionally,37 whereas
unlawful subcontracting arrangements (see supra in this subsection) have regularly led to a
condemnation of both the platform and the subcontractors. Reference may also be had again
to the Norwegian and Swedish case law maintaining that the allocation of health and safety
obligations with the customer in the cases at issue did not preclude diverging findings
regarding other employer functions (see supra at 2.2).




34 Inspección de trabajo, 2020/2021, https://govern.cat/salapremsa/notes-premsa/401344/inspeccio-treball-
catalunya-sanciona-cabify-dues-empreses-subcontractistes-ett-cessio-illegal-persones-treballadores                    (Cabify,
Uber).
35 Gerechtshof Amsterdam, 21 september 2021, ECLI:NL:GHAMS:2021:2741 (Federatie Nederlandse

Vakbeweging/Helping Netherlands B.V.).
36 The only other ones were a non-published opinion by the Dutch Labour Inspectorate on the platform

Temper in February 2021 and a Swiss second-instance ruling on UberEats, which has been overruled in this
respect by the Federal Court very recently (see Tribunal federal, Arrêt du 30 mai 2022, 2C_575/2020).
37 Effectively in one Belgian administrative decision, which has recently been overruled by the Labour Court.

Cf. Ghislain S., Verwilghen M., Le statut social des travailleurs de l’économie de plateforme: état des lieux dans un contexte
mouvant (Première partie), 2020 J. des tribunaux du travail [J. Work Trib.] 533, and Tribunal du travail
francophone de Bruxelles, Dec. 8, 2021, JT 08 December 2021 (Deliveroo).

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4. The role of legal presumptions.

4.1. Generally applicable presumptions.

    Inspired by the internationally most well-known ABC test under Californian law,38 there
has been a vivid interest in the potential of legal presumptions for achieving a categorisation
of platform workers as employees.
    In Europe, a minority of countries (Croatia, Estonia, Greece, Malta, the Netherlands,
Portugal, Slovenia, Spain) stipulate a general rebuttable presumption of employee status
where certain criteria are fulfilled.39 Occupation-specific presumptions for activities which
could also be performed in a platform work setting exist in France (e.g. for journalists and
artists40) and Belgium. The latter is the only country employing a strategy akin to the two-
out-of-five rule envisaged in Articles 4 et seq. of the Proposed Directive whose application
in relation to platform workers has already been examined in practice.41 More specifically,
case law has confirmed the fulfilment of the necessary five out of nine criteria, which trigger
a presumption of dependent employment in the transport and delivery sector under Belgian
law, for Deliveroo and Uber. At the same time, however, this case law provides an example
of a platform succeeding in rebutting the presumption before a court.42
    Also legal presumptions of a broad and generic nature, as they exist in the Netherlands
and Spain,43 have not stood out as particularly decisive in those countries’ platform-related
case law. Dutch decisions have so far not even mentioned the (partial) applicability of the
default categorisation as an employment contract, whereas the legal reasoning in the Spanish
judgments which do cite it (including the one by the Supreme Court44) indicates that the fact
that the burden of proof was on the employer was barely decisive for the reclassification.
    The one country where a legal presumption has regularly been taken into account for
assessing the status of platform workers is France. This, however, did not concern the above-


38 According to Section 2750(b)(1) of the State of California Labour Code, a person providing labour or services
for remuneration is considered to be an employee rather than an independent contractor, unless the principal
demonstrates that all of the following three conditions are met: (A) The person is free from the control and
direction of the hiring entity in connection with the performance of the work, both under the contract for the
performance of the work and in fact; (B) The person performs work that is outside the usual course of the
hiring entity’s business; and (C) The person is customarily engaged in an independently established trade,
occupation, or business of the same nature as that involved in the work performed.
39 See Kullmann M., ‘Platformisation’ of work: An EU perspective on Introducing a legal presumption, forthcoming in

European Labour Law Journal 2022, 13(1).
40 See the Seventh part of the French Labour Code.
41 See also subsection 2.4 of Hießl C. nt. (27).
42 See Article 337/2, Section 1 of the Loi-programme (I) of 27 December 2006, and Commission administrative

de règlement de la relation de travail (CRT), Feb. 23, 2018, 116 – FR – 20180209 (Deliveroo), Mar. 9, 2018, 113
– FR – 20180123, and Oct. 26, 2020, 187 – FR – 20200707 (Uber); as opposed to Tribunal du travail
francophone de Bruxelles, Dec. 8, 2021, JT 08/12/2021 (Deliveroo).
43 The Spanish provision (Article 8.1 of the 1995 Workers' Statute) stipulates such a presumption for any

“provision of services on behalf of and within the scope of the organisation and management of the contracting
party in return for remuneration”, whereas the Dutch rule – which depends on a monthly working time of
more than twenty hours for one employer (see Article 7:610a Civil Code) – would seem applicable at least to
an important share of pf workers.
44 S.T.S., Sept. 23, 2020 (n. 4746/2019) (Glovo).



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mentioned, narrowly conceived occupation-specific presumption of employment, but on the
contrary the presumption of self-employed activity in case of entry into a business register. Since
notably ride-hailing platforms regularly require their drivers’ entry into such a register, courts
up to the Cassation Court 45 have seen a necessity to put the bar for those workers’
reclassification as employees very high.


4.2. Specific provisions on platform work.

   Ahead of the potential future requirement for EU Member States to introduce a legal
presumption implementing the Proposed Directive, Spain has pioneered own-initiative
legislative moves of this nature with the “Riders’ Law” (Royal Decree-Law 9/2021), in force
since 12 August 2021 and focusing exclusively on delivery platforms. Portugal has followed
suit and introduced a bill on a rebuttable presumption for all platform types, which is in the
process of being passed at the time of writing.46
   While concrete conclusions would be premature at present, developments in Spain
certainly indicate that the introduction of such a presumption is likely to face a host of
challenges. So far, the largest delivery platform on the Spanish market (Glovo) appears to
have largely ignored its obligations, requalifying only a minority of its workforce and
remaining subject to prosecution for its continued work with riders under contracts for self-
employed service provision.47 Trade unions estimate that 15,000 riders continue to work as
bogus self-employed, even after the company has been ordered to pay a total of at least EUR
35 million in fines and compensation. At the same time, around 10,000 jobs are estimated to
have been lost as a result of platforms’ reactions to the Riders’ Law – which include
Deliveroo’s retreat from the Spanish market and substantially altered requirements for work
for those platforms which now directly or indirectly hire their workers as employees.
Bizarrely, UberEats (which now works with employees hired by subcontractors) has become
one of the most vocal actors demanding the prosecution of Glovo, as it claims to lose
workers who prefer to work under self-employed contracts to its competitor.48




45 See notably Cass. soc., 13 avril 2022, Bull. civ., ECLI:FR:CCASS:2022:SO00549 (LeCab).
46 See Dray G., Portuguese Green Book on the Future of Work, presentation held at the International Seminar
"Improving the Working Conditions in Platform Work", 22 June 2022.
47 See the platform’s condemnation in numerous cases brought before the courts by the social security

administration, labour inspectorate and trade unions – e.g. Juzgado de lo Social de León, Sección 1,
22/12/2021, Nº 504/2021, SJSO 5990/2021 - ECLI:ES:JSO:2021:5990 (Glovo); Juzgado de lo Social de
Córdoba, Sección 3, 19/05/2022, Nº 662/2020, SJSO 693/2022 - ECLI:ES:JSO:2022:693 (Glovo).
48 See Cano F., Cerco a los autónomos de Glovo: los sindicatos estiman que tiene 15.000 'riders' sin regularizar, in The Objective,

10 March 2022, https://theobjective.com/economia/2022-03-10/glovo-trabajo-riders/.

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5. Case law developments.

   While claims of employee status for platform workers may have appeared exotic several
years ago, the recent past has seen a swift expansion. As of June 2022, more than 22049
decisions have been handed down by courts and administrative bodies across European
countries in disputes concerning the classification of platform workers.


5.1. Overview.

    As evident from Table 1, fifteen countries’ courts and/or administrative bodies have had
to rule on the status of platform workers in the framework of cases brought before them. In
France, Germany, Italy, Spain, Switzerland and the UK, individual cases have reached the
last-instance courts.

       Table 1: European case law on the status of platform workers
               AT      BE   CH   DE     DK      ES    FI    FR     IE     IT    LU      NL      NO        SE     UK

 Adm.          4       4    3           3       10    2     2      1      1     1       1       2         3
 1st           4       4    3    2              28          38     1      13            4                 3      9
 2nd                        2    2              17          32     1      1             2                 1      5
 3rd                        2    1              2           8      1      1                                      3
 4th                                                                                                             2


       Source: own calculations50


5.2. Outcomes for different types of platforms.

   Strikingly, there is virtually51 not a single country with more than one decision on the
status of platform workers where those decisions would not differ in their outcomes. The

49 Around 220 decisions have been reviewed and analysed by the author of this contribution, as depicted infra
in Table 1. This research includes the existing case law in most countries up to May 2022 comprehensively,
with the exception of France and Spain (where a large number of decisions, notably by first-instance bodies,
are not publicly available). Individual cases which do not concern platform companies in the strict sense (on
parcel delivery and plumbing companies in the UK, a food delivery company in Ireland, and an umbrella
company in Sweden) have been included due to their crucial relevance for the judicial assessment of the gig
economy in those countries.
50 An electronic copy of the database of European case law on platform work as compiled by the author may

be requested via message to chiessl@yonsei.ac.kr. The most recent version of the comprehensive analysis based
on it is available for download via https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3839603. The
findings presented in the following subsection are based on this compilation.
51 Finland arguably constitutes an exception, although the two rulings as indicated in Table 1 were in fact not

decisions but opinions of the Labour Council (Työneuvosto, 5/10/2020, TN 1481-20 and TN 1482-20). As
for Swiss case law, differing outcomes actually did not question the classification of platform workers as
employees, but merely the identification of the employer or the existence of a situation of temporary agency
work (see notably Tribunal federal, Arrêt du 30 mai 2022, 2C_575/2020 (UberEats)).

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same effectively applies to different platform types – as all of them have been considered
employers in some but not all of decisions across Europe. Nonetheless, a trend may be
discerned at least for the two types which have made up the bulk of all decisions handed
down so far: ride-hailing and delivery platforms. For both types, the most recent and/or
highest-level decisions in most countries have classified platform workers as employees (or
similar). 52 For ride-hailing platforms, this includes last-instance court decisions in France,
Switzerland and the UK;53 on food delivery platforms, last-instance rulings in France, Italy,
Spain and Switzerland, as well as one second-instance judgment in the Netherlands.54 A more
cautious inclination to reclassify platform workers as employees can be identified for drivers
in Spain and riders in Denmark and Finland.55 Noteworthy recent decisions to the contrary
can be found for both platform types in Belgium and France,56 and for delivery businesses
in Ireland and the UK.57
    Only scattered decisions have dealt with the potential status of other platform types as
employers. It would thus be premature to seek to identify a trend in relation to platforms
offering services in private households (cf. the decisions on cleaners in Denmark, the
Netherlands and Norway, on plumbers in the UK, and variable services in Sweden58) or for
business customers (cf. the decisions on mystery shopping platforms in Austria, France and
Germany, and on hiring-out services in the Netherlands59).
    One interesting feature of all this case law is that decisions on appeal which modified the
basic qualification have been much more likely to change it from self-employed to employed
than vice versa,60 and virtually61 all last-instance decisions have found in favour of employee
status or similar.

52 Notably hetero-organised workers in Italy and (limb b) workers in the UK (see supra at 2.2), which are
covered by minimum wages and collective bargaining rights just as employees.
53 Most recently Cass. soc., 13 avril 2022, Bull. civ., ECLI:FR:CCASS:2022:SO00549 (LeCab) and Tribunal

federal, Arrêt du 30 mai 2022, 2C_34/2021 (Uber).
54 Most recently Cass. soc., 19 mai 2022, Bull. civ., ECLI:FR:CCASS:2022:C200500 (Take Eat Easy) and Tribunal

federal, Arrêt du 30 mai 2022, 2C_575/2020 (UberEats).
55 Most recently Bindende svar fra Skatterådet, 25 januar 2022, https://www.hk.dk/-/media/images/om-

hk/sektorer/privat/hkprivat/pdf/2022/wolt_skatteraadets_afgoerelse.pdf?la=da&hash=23CA29F1E4E7CE
3AA1584DAC3DA569E3 (Wolt), and Inspección de trabajo, 1/2022 (Amazon Flex).
56 Most recently Tribunal du travail francophone de Bruxelles, Dec. 8, 2021, JT 08/12/2021 (Deliveroo), and CA

Paris, 15 fevrier 2022, RG n° 19/12511 (SRT).
57 Most recently The Independent Workers Union of Great Britain v. The Central Arbitration Committee

[2021] EWCA Civ 952 (Deliveroo); Karshan (Midlands) Trading as Dominos Pizza v. Revenue Commissioners
[2022] IECA 124.
58 Most recently Gerechtshof Amsterdam 21 september 2021, ECLI:NL:GHAMS:2021:2741 (Federatie

Nederlandse Vakbeweging/Helping Netherlands B.V.); Förvaltningsrätten i Malmö, 2022, n. 13356-20
(Tiptapp);
59 Most recently Cass. crim., 22 juin 2021, Bull. civ., ECLI:FR:CCASS:2021:CR00778 (Cliq and Walk);

Bundesverwaltungsgericht v. 11.8.2021, I413 2221763-1.
60 The main scenario in which courts have reversed a classification as employee are first instance judgments

overturning an administrative decision (with recent examples in Austria, Belgium and Sweden). The only outlier
is a very recent Irish third-instance decision (Karshan (Midlands) Trading as Dominos Pizza v. Revenue
Commissioners [2022] IECA 124), which is expected to be brought before the Irish Supreme Court eventually.
61 Although the French Cassation Court recently overturned a judgment that had classified LeCab drivers as

employees, the decision does not indicate whether that classification was wrong in its outcome. Note that the
same Cassation Court had overturned a classification of platform drivers as self-employed only three months
earlier, and two years earlier expressly found that Uber drivers (who arguably dispose of more entrepreneurial

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5.3. Criteria and innovations

   A comprehensive analysis of the partly remarkable developments that are observable in
the courts’ approaches to national concepts of employee status when confronted with the
task of assessing the situation of platform workers has been provided elsewhere62 and would
be beyond the scope of the present contribution. Suffice to say at this point that many –
though not all – European decision-making bodies have explored approaches to the
reclassification of platform workers which may involve limiting the importance attached to
contractual designations as “self-employed”; less insistence on exclusively personal work
performance (and notably its basis in a contractual obligation); a more liberal approach to
the question of an obligation to work (either by effectively accepting incentives or
expectations instead of strict obligations, or by a purposive interpretation which reassesses
the role of this criterion as an indicator of entrepreneurial independence); a broader
understanding of the concepts of instructions, control and sanctions; and/or a shift of focus
towards criteria of organisational integration (as opposed to genuine
independence/entrepreneurship), and a more in-depth assessment of the factors that
determine such integration. By contrast, only very scattered evidence points to an
embracement of economic dependence in the narrower sense as a significant criterion, or of
a consideration of indicators of the principal’s appearance as an employer.
   Remarkably – and in contrast to general perceptions of the notion of worker under EU
law appearing broader than most national concepts in Europe – many national-level
approaches in this context, particularly also in the highest-instance courts, seem prepared to
go much further than the CJEU in Yodel63 in terms of overcoming traditional concepts of
subordination in favour of an increased focus on organisational integration and the lack of
genuine entrepreneurial independence.64


6. The Consequences of a changed categorisation.

   All in all, in more than three quarters of the cases ruled on by administrative and/or
judicial bodies in Europe so far, platform workers have been considered to work in
subordination in the (hitherto) highest instance. The far-reaching consequences for
platforms have included the payment of millions in arrears of taxes and social security
contributions (particularly in the Spanish cases, which have repeatedly concerned hundreds
of riders65), compensation payments to employees, which partly amounted to six-digit sums



freedom than LeCab drivers) were to be considered employees. See Cass. soc., 4 mars 2020, Bull. civ.,
ECLI:FR:CCASS:2020:SO0037; Cass. soc., 13 avril 2022, Bull. civ., ECLI:FR:CCASS:2022:SO00549 (LeCab);
Cass. soc., 12 janvier 2022, Bull. civ., ECLI:FR:CCASS:2022:CO00023.
62 See Hießl C., nt. (3) (notably subsection 2.1) and Hießl C., nt. (27) (notably section 3).
63 Case C‑692/19, B v Yodel Delivery Network Ltd. [2020] ECLI:EU:C:2020:288.
64 See subsection 3.2 of Hießl C., nt. (3).
65 Most recently Juzgado de lo Social de Córdoba, Sección 3, 19 May 2022, Nº 662/2020, SJSO 693/2022 -

ECLI:ES:JSO:2022:693 (Glovo).

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for a dozen of violations,66 in some cases reinstatement,67 and occasionally convictions under
criminal law.68
    Much more complex is the question of the longer-term consequences for future labour
relations with the platform companies at issue. Up to now, the described multitude of
decisions has not led to a large-scale move by platforms to hire various types of their workers
as employees.
    All in all, the platform type most likely to conclude direct employment contracts with its
workers is the delivery platform. Regarding the most debated area of food delivery, European
markets such as the German one are dominated by platforms which have long classified their
workers as employees before ever becoming subject to litigation.69 Platforms such as JustEat
have converted the service contracts with their riders into employment contracts in recent
years.70 But examples of platform “voluntarily” assuming the role of employer exist also for
other types: in fact, the only example of a “reverse reclassification” from employee to self-
employed has concerned two Danish cleaning platforms, who were condemned for violating
competition law in 2020.71
    On the whole, however, the overwhelming majority of platforms have so far rejected calls
to offer regular employment. Major platform companies’ standard reaction to judicial or
administrative rulings affirming their workers’ employee status has generally involved a
combination of appealing decisions until the last instance and repeatedly amending their
terms and conditions, so that even last-instance decisions could be claimed void of
significance for their current contracting models. 72 Notably ride-hailing platforms, which
have typically been confronted with lawsuits in connection with administrative rules on
passenger transport long before labour law issues were brought up, have developed country-
specific approaches, and are consequently working partly or even exclusively with
subcontractors which hire their drivers (depending on requirements of national law).
Subsequently, such subcontracting constructions have also gained popularity among other
platform types (notably delivery businesses, resulting in issues as discussed supra at 4.2.




66 See e.g. CA Paris, Pôle 6 - chambre 6, 9 mars 2022, n° 19/00983.
67 Notably in Italy and Spain – see e.g. Trib. Palermo, 21 April 2021, sez. lav., GL n. 740/2021 (SocialFood).
68 E.g. Trib. Torino, sez. lav., 18 November 2021, n. 4991/2020 R.G.L. (UberEats).
69 On the German situation see Kapalschinski C., Foodora gibt sich geschlagen, Lieferando triumphiert, in Handelsblatt,

21 December 2018, https://www.handelsblatt.com/unternehmen/handel-konsumgueter/delivery-hero-
foodora-gibt-sich-geschlagen-lieferando-triumphiert/23790642.html?ticket=ST-3397145-
X1r4a13xo9YJd9uF5GKt-ap1.
70 See e.g. Todolí A., Argumentos de la sanción a Cabify por cesión ilegal de la Inspección de trabajo – aplicables a muchas de

las plataformas digitales, in Argumentos en Derecho Laboral, 25 March 2021.
71 See Konkurrencerådet, 26/8/2020, Konkurrencerådsafgørelse (Hilfr, Happy Helpers).
72 The most prominent examples may be Deliveroo’s abandonment of the shift schedule system, and Uber’s

moves to offer more choice (e.g. on the route to take) and provide more information to its drivers. Thereby,
certain key indicators of subordination as identified in decisions on these platforms in e.g. Belgium, France,
Italy, the Netherlands, Switzerland and the UK are actually no longer present. Yet, at least some recent rulings
have reclassified these platforms as employers also in regard of their amended terms and conditions: see
Gerechtshof Amsterdam 16 februari 2021, ECLI:NL:GHAMS:2021:392 (Deliveroo Netherlands B.V./
Federatie Nederlandse Vakbeweging); Tribunal federal, Arrêt du 30 mai 2022, 2C_34/2021 (Uber).

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7. Discussion.

    The idea of addressing problems of bogus self-employment and legal uncertainties about
the status of platform workers by the introduction of a legal presumption has many
proponents in the pertinent literature.73 Among the potential benefits, Kullmann74 mentions
legal certainty, greater amenability to representation by social partners organisations (who
may devise individualised collective solutions) and enforcement of right, while recognising
as one critical aspect that presumptions “still require a case-by-case approach (by courts)”.
    This last aspect appears significant when assessing the impact to be expected from the
introduction of a presumption along the lines of the Proposed Directive. Fundamentally,
legal presumptions can be assumed of crucial relevance if the resulting shift of the burden of
proof can be expected to constitute a major hurdle for employers to overcome. This is
certainly the case in sectors characterised by a multitude of individualised and potentially
poorly framed contractual relationships, for which employers may struggle to proof the
essential facts and shy away from litigation over a single contractual relationship. The
platform economy, by contrast, is characterised by companies imposing identical contractual
conditions on a (very) large number of workers. The sheer scale of those conditions’ use
means not only that platforms will regularly be more than ready to leave no remedy untried
to avoid them from being declared unlawful, but also that there is regularly and abundance
of evidence about the exact contents and circumstances of the contractual relationship. In
fact, in the overwhelming majority of decisions on the platform economy as described supra
in section 5, all of the major contractual features considered relevant by the decision-making
bodies were common grounds between the parties of the dispute. In other words, the
allocation of the burden of proof was irrelevant.
    Here, it may be important to note that the effective impossibility for platform companies
to escape a classification as employers under the Californian ABC test (see supra at 4.1)
before the introduction of Prop 2275 was not due to the mere existence of a (broadly framed)
legal presumption of employee status, but crucially to the exceptional difficulty of rebutting
that presumption. After all, such rebuttal requires the cumulative proof of three elements, two
of which (prongs B and C76) are effectively alien to European concepts of employee status.77
The same effect can thus hardly be expected from the introduction of a legal presumption
which leaves the eventually decisive test of employee status untouched. This may best be
illustrated by the example of Belgian law, which combines a presumption favouring employee
status for transport and delivery workers with a comparatively very restrictive notion of



73 See e.g. Countouris N., De Stefano V., New Trade Union Strategies for New Forms of Employment, ETUC, 2019;
Risak M., nt. (28).
74 Kullmann M., nt. (39).
75 Regarding the background and impact of Prop 22, which effectively exempted key platform types from the

application of the ABC rule, see Dubal V., Winning the Battle, Losing the War: Assessing the Impact of Misclassification
Litigation on Workers in the Gig Economy, in Wisconsin Law Review. 2017, 754.
76 For a discussion of the potential over-inclusiveness of the current concept and possible modifications to

achieve better targeting see Davidov G., Alon-Shenker P., nt. (7).
77 See subsection 3.1 of Hießl C., nt. (3).



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employee,78 as illustrated by the Brussels Labour Court’s most recent judgment on Deliveroo,
in which it considered the presumption to have been rebutted successfully.79
    This may constitute the major question mark in relation to the regulatory strategy chosen
by the European Commission in the Proposed Directive – which, as noted by Waas,80 may
naturally result from the fact that any actual harmonisation of national concepts of employee
status would have appeared questionable in light of the EU’s competences in the area of
labour law.
    A second issue which may deserve discussion is the fact that any approach aiming to
facilitate the reclassification of platform workers effectively amounts to the protection of a
minority at the possible expense of the majority of platform workers. First insights from the
Spanish situation (see supra at 4.2) underline the unsurprising fact that, once platforms
recognise that declaring their workers self-employed is not legally possible, they see no more
reason to offer workers the flexibility which currently characterises work in the industry.
Rather, they will likely use the power of direction appertaining to them as legal employers,
so as to actively organise their workforce in the most profitable way – notably by instructing
individuals to work certain shifts and perform the tasks assigned to them, while laying off
those whose added value for the company seems limited e.g. due to only sporadic and
irregular commitment. Such outcome seems effectively unavoidable if employee status
means that e.g. riders and drivers become entitled to pay during on-call periods when they
are logged in and ready to accept assignments.81
    This outcome appears justified when considering that it benefits those earning their living
through platform work, by offering them the prospect of a more stable and secure work and
income pattern. These individuals arguably seem more worthy of protection than those for
whom platform work constitutes a side activity to top up their income flexibly. Nonetheless,
the fact remains that a shift as described would likely lead to the exclusion of groups at the
margin of the labour market, who for various reasons are unable to commit to larger-scale,
regular work involvement, and for whom platform work in its current form may constitute
a unique opportunity of low-barrier gainful employment. Note that possible concepts of
preserving the “on-demand” work model under certain preconditions as an alternative to
regular platform employment are already being discussed in the pertinent literature. 82
    A closer look at the case law on employee status handed down so far evidences that at
least some European jurisdictions allow for legal arrangements which combine “on-demand”
work patterns with employee status for vulnerable groups of workers. This includes the


78 Notably regarding the importance attached to the contractual designation and the obligation to work, as
opposed to courts in other countries, which seem to gradually limit the weight attached to these criteria. See
subsections 3.1 and 3.5 of Hießl C., nt. (27).
79 Tribunal du travail francophone de Bruxelles, Dec. 8, 2021, JT 08/12/2021 (Deliveroo).
80 Waas B., Verbesserung der Arbeitsbedingungen von Plattformbeschäftigten, forthcoming in Zeitschrift für Rechtspolitik,

2022.
81 A currently highly contentious issue – cf. Uber’s commitment to recognise worker status for its UK drivers

with the exception of payment between assignments (see e.g. BBC, Uber 'willing to change' as drivers get minimum
wage, holiday pay and pensions, 17 March 2021, https://www.bbc.com/news/business-56412397.
82 See notably Katsabian T., Davidov G., Flexibility, Choice and Labour Law: The Challenge of On-Demand Platforms,

forthcoming in University of Toronto Law Journal, 2022.

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umbrella company model assessed by the Swedish courts,83 which is based on a series of
fixed-term employment contracts, and the Amsterdam Civil Court’s solution of classifying a
cleaning platform as a temporary work agency.84 These examples illustrate that platforms
which do not determine or control the services offered by their workers in any significant
way can – and should perhaps be obliged to(?) – be a vehicle for various protections that
improve the situation of workers, compared to a scenario of exclusively direct contractual
relations with a customer. This may include social security affiliation, collective bargaining,
the provision of training, safeguards against non-payment and other issues in the relationship
with customers etc.
    In the end, with a view to the diversity of situations – and despite the justified scepticism
frequently expressed in relation to the introduction of “intermediate” status – there may be
a case for a layered system of protection for platform workers. This may include ensuring a
stable, “regular” employment pattern (including payment between assignments) for those
cases where this is realistic and justified due to the platform’s role in organising and
determining the service and its pricing, but also tolerating models of more occasional work
performance based on actually flexible individual agreements between worker and customer
– in which case the challenge is one of allocating protective functions to platforms and
customers in a reasonable way. Finally, in line with the spirit of the P2B Regulation85 – which
so far does not seem to have been invoked in a single case of platform work – it seems
worthwhile to focus on the situation of those “genuinely self-employed” platform service
providers, who cannot reasonably be considered in a situation of subordination in their
relation to either the platform or the customer, but for whom certain standards of fairness
seem nonetheless imperative with a view to the overwhelming imbalance of bargaining
power they face when contracting with those entities. Some elements of the Proposed
Directive, which are meant to apply to all platform workers irrespective of their status – such
as protections in the context of algorithmic management – seem a crucial step in this respect.




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                                                                                      Section: Miscellaneous




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Copyright © 2022 Christina Hießl. This article is released under a Creative Commons
Attribution 4.0 International License




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