The Digital Services Package
• The eCommerce Directive has greatly contributed to the growth of Europe’s
economy, yet the online landscape in which it was adopted has greatly changed.
Shaping a framework that takes this into consideration must protect both consumers
and the competitiveness of business users. The value of the online ecosystem lies
in its ability to operate quickly at scale.
• Clarity on which types of digital services and definitions of what goods/content are to
be covered are required. The framework should be upgraded to apply to 3rd country
services that are not established in the EU but offering services within it.
• Clear, fast and harmonised mechanisms are needed to support the removal of illegal
goods and content online. Further novel measures should be considered to
incentivise platforms into maintaining diligent processes of active engagement.
• A clear notion of what is an illegal good/content is needed. This cannot be a “one-
size-fits-all” definition and should instead be tailored based on specific, existing EU
and national legislation. The notion of legal but “harmful” content should not be
defined or legislated for at the risk of breaching fundamental rights.
• Platforms achieving a so called “gatekeeper” position are not necessarily abusing
that position. However it can take place through carrying out activities that impede
effective competition. Contestability of these platforms by others through truly open
markets should be the goal.
• Clarity as to which platforms are considered "gatekeepers" as well as the criteria as
to how these characteristics should be measured are required. Appropriate and
practicable thresholds would avoid overregulation on smaller platforms that serve
only niche markets.
• Any new ex-ante mechanism should have a solid due process and governance model
to avoid legal uncertainty and arbitrary decisions in order to keep the spirit of the
existing competition framework.
• Consumer welfare must remain the ultimate goal. As markets are rapidly evolving
with the state of technology any new mechanism should remain future-proof and
• The Commission should continue to map the situation and policy responses across
Member States to develop a repository of practices to better understand the
commonalities and differences of platform workers across the single market and then
carry out tripartite discussions on this topic.
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“GATEKEEPER” PLATFORMS AND PLATFORM WORKERS CONTEXT
The eCommerce Directive has successfully promoted online commerce and the
development of the platform economy in Europe. It has also offered new opportunities
for businesses, particularly SMEs, to participate in the wider global economy. In turn, this
has fostered knock-on effects for growth, innovation and the development of services for
other economic sectors. The Directive has therefore greatly contributed to Europe’s
economic activity. We have defended the internal market provisions of this Directive (see
BusinessEurope’s separate paper here)
and believe that the country-of-origin principle
within the eCommerce Directive should not be opened as it represents a cornerstone of
the Single Market. Key Single Market provisions of the directive should be preserved.
However, we recognise that the context in which the eCommerce Directive was adopted
is different to the current state of play. The sheer size, importance and influence of the
online economy has meant that rogue actors have utilised platforms in order to distribute
illegal goods and content online. It is therefore useful to revisit this framework, align it
with EU case law and ensure the online sale of fake, counterfeit or dangerous goods and
content is tackled effectively, particularly when (exterritorial) enforcement of product
safety laws against non-compliant products entering the EU market have been difficult
Some platforms have also emerged with stronger market positions in the digital
economy. While dominant players are permitted, the monitoring of markets must ensure
effective competition, consumer welfare, the creation of innovation and ensure that no
barriers for market entry exist within the markets in which they operate. It is also
important to tackle problems related to interoperability and portability for business users
(see BusinessEurope’s paper
on the data strategy on this regard).
The update of the safe harbour regime for digital services providers should take other
legislative measures impacting this initiative into account to avoid risk of overlapping or
conflicting provisions (eg. the Copyright Directive, Platform to Business Regulation,
Goods Package, Audio-visual Media Services Directive, VAT Reforms and the ongoing
discussion surrounding the Terrorist Online Content Regulation). Any revision of the
eCommerce Directive should ensure broad harmonisation, maximum certainty for
businesses, a level playing field for all and effective enforcement, including those
companies outside the EU offering their services in the single market.
We also understand that the Commission is taking the opportunity to consult on issues
related to platform workers’ rights as self-employed people providing services for the
platform economy. It is important to approach the topic of platform work from a broad
perspective eg. not only related to social affairs. Furthermore, it is important to realise
that the issues currently under discussion are not specific to platforms – they relate to
self-employed persons more generally. As already made clear in the agreement on the
directive on transparent and predictable working conditions, it is for Member States and
social partners to decide how to define different types of work and categories of workers.
This should be done in a way which ensures legal clarity, takes account of new forms of
work and is future-proof. It should also be in line with competition policy rules, and their
interpretation by the European Court of Justice1.
As a key societal stakeholder, BusinessEurope outlines its reaction to the Commission’s
consultation on the Digital Services Package in relation to tackling illegal content online,
gatekeeper platforms and platform workers, below:
1. TACKLING ILLEGAL GOODS/CONTENT ONLINE:
The policy maker must take consideration of both: protection of European consumers
and competitiveness for business users; while keeping innovative services that citizens
expect and fostering opportunities for new business models to develop. The value of the
online ecosystem lies in its ability to operate quickly and at scale. Measures should be
effective, practicable and proportionate so as to not detriment their benefit to consumers,
businesses and society alike.
As the DSA intends to update the eCommerce Directive and target this framework
towards removing various types of illegal goods & content online, it is crucial that clear
definitions and categories exist as to what is being covered so that respective
responsibilities are understood. It should also be clear as to what is meant by a platform
(intermediary) covered under these new rules. It should have clear definitions to
determine what “content”, “services” and “product” we refer to in this instance. We need
legal clarity but also avoidance of unnecessary burdens for sectors not intended to be
included (e.g. logistics, transport).
We also call on the Commission to recognise the diversity of platforms (clearly
differentiating between those who play an active or a passive role with respect to the
information they distribute, share or host) spell out the services or activities not intended
to be in scope of the proposed measures. A one-size-fits-all approach that would apply
similar rules to all online services, regardless of their business model, societal impact or
risk profile in the dissemination of illegal content, would damage the broader data
Further to this, we agree that the framework should be upgraded to apply to 3rd country
services that are not established in the EU but offering services within it. These services
should be obliged to have a digital representative, particularly as the most popular
platforms used by EU consumers are not based in the EU. Geographical location bears
little significance when these goods and services can be accessed by EU citizens online
Notice and take-down:
1 C-692/19 concerning the status of platform workers in the UK working for Yodel delivery network,
the ECJ ruled that it is for national courts to make decisions about workers' employment status
and that in this case, the worker had been correctly classified as self-employed
The ability to bring actions against platforms must be a key factor in ensuring the
sustainability of the digital economy. However, notice and takedown procedures, the
main tool for removing illegal content, remain fragmented across the EU. This means
that procedures can differ from one intermediary to another, including: the speed of the
responsiveness, the information required from the intermediary, the information to be
provided throughout the takedown process (eg. acknowledgment of receipt of the notice,
confirmation of takedown, information about the measures taken). The role of the DSA
should therefore reinforce the cascade of responsibilities in fighting illegal content,
stressing that clear, fast and harmonised mechanisms are defined for the removal of
illegal content. It would be appropriate to harmonise notice and takedown procedures as
the primary instrument in the removal of illegal content in the EU by indicating criteria for
notices of illegal content. The clearer the conditions for illegal content, the better and
faster the response from platforms.
The awareness of illegal content should trigger a straightforward obligation to remove or
block access to such content after obtaining this knowledge. The update of the existing
eCommerce Directive should therefore preserve liability for platforms that have actual
specific knowledge of the illegal content (eg. through receiving a notice) but then failed
to act (eg. by not removing or blocking access to specific illegal content). While failure to
keep the content down indefinitely should not lead to immediate liability for the
intermediary if the previous notice was reasonably followed, “best efforts to prevent their
future upload” in accordance with “high industry standards” as per Article 17(4)(c) of the
Copyright Directive could be a useful principle for platforms to follow to prevent the re-
upload of illegal content. Liability should only feature however if “best efforts” cannot be
demonstrated or another notice was issued on the basis of the re-upload and then not
We therefore agree that novel measures for services to tackle illegal content should also
be considered in the revision of this framework. This approach should incentivise
platforms to ensure processes of active engagement to keep illegal goods and content
from their services. As a result, we support the strengthening of existing overarching EU
coordination groups (eg. Member State eCommerce coordination group) to support
national authorities in collecting evidence to check and proportionately penalise those
that do not have necessary processes in place to be in a position to obtain “actual
knowledge” themselves to remove illegal goods/content or effectively enforce the terms
& conditions of their services.
What is deemed satisfactory should be based on a broad diligence assessment of the
platform (eg. processes adopted, dedicated employees, combination of cases). It will be
important to take into account the ultimate goal: the creation of a healthy digital
environment in which illegal contents or goods are removed promptly. Regular and
proportionate transparency reporting on the removal of illegal goods/content could aid
businesses to demonstrate adherence to this general responsibility. Provisions should
also seek to consider how they could impact smaller businesses, considering their limited
resources to proactively take action in comparison to larger companies; a proportionate
approach should be taken. If certain processes are found to be sub-optimal, constructive
regulatory engagement with the intermediary should take place to improve the situation
before penalties are given.
Some platforms are often involved in the actual transaction itself (eg. stocking,
transportation) where it is difficult to distinguish the platform from the business user.
However, a commercial relationship does already exist to organise those services. We
therefore support a “Know Your Business Customer” responsibility to be established to
incentivise platforms to further use this necessary information to identify their customers
in order to create a safer online business environment. Again, these new provisions
should take the limited resources of smaller businesses into account.
However, provisions should be proportionate and only apply to active platforms. There
should only be liability for passive mere conduit, caching and hosting services where
positive knowledge arises due to an intermediary being notified or where they have taken
active measures and become aware but then failed to act sufficiently. Otherwise, there
should be no liability for passive services. The distinction between service categories in
Article 14 of the eCommerce Directive should be upheld and complemented by additional
criteria aimed at clarifying the passive nature of these services. For example, keyword
advertising for trademarks cannot easily be classified as a host provider as current terms
have fallen behind the times linguistically. In particular, this criteria should take into
account the actual risk presented by, whether the service provider has any control over
the content being published or possesses the technical capabilities to access users’
specific content that is otherwise not public. In some cases, a business user maybe
obliged to maintain full control of the content and services they operate.
This should be coordinated with existing laws to ensure coherence (e.g. the Copyright
Directive, the revised Audiovisual Media Services Directive and the proposal for a
Regulation on Terrorist Content Online). The flexibility of this approach would allow
provisions to evolve over time and enable a differentiated approach through guidance
based on the nature of the applicable service or content.
Providing platforms with more responsibility to remove illegal content can only take place
with clarity on which content is actual y deemed “il egal” and which services it needs to
be removed from. Only then can they exercise further responsibility to meaningfully
remove that content.
The spread of illegal online activity continues to cause societal harm. We support the
principle of: “what is il egal offline must also be il egal online”. What could help business
is a clear notion of what il egal content is in a harmonised manner. This cannot be a “one-
size-fits-all” definition however and should instead be tailored based on specific EU and
Online platforms have made some steps to reduce illegal content that is online, the scale
and pace of technological change has also permitted growth of illegal goods and content
online. Online platforms have however invested in technologies, processes and people
to protect consumers and businesses alike. They have developed tools to monitor
activities to detect certain types of illegal content. However, it is important to realise that
these types of aids are still a long way off replicating human judgement which itself is not
Consumer flagging can play an important role and some online platforms already offer
this possibility to promote a positive user experience. While community standards are
important, it is ultimately up to authorities to decide what is actually illegal. Courts should
also continue to play an essential role in both interpreting and shaping the legal
framework and decisions on which platforms rely and resolving disputes that arise.
Clarity on what content is deemed to be illegal would help all actors and bring the crucial
legal certainty needed.
In order to meaningfully prevent, remove and disable access to illegal content online,
platforms should be required to adopt clear terms and conditions that express that the
sale or promotion of illegal goods and content is prohibited and will give rise to sanctions.
Online platforms should know the identities of their business users too (see more on the
“Know Your Business Customer” responsibility above). In the context of transparency,
we also suggest that the injured party should be provided with the infringer's contact
details in order to enable the seamless enforcement of legal claims.
Transparency is also important for business users who have placed the content online
that is subsequently deemed illegal either by an authority or an online intermediary.
Information as to why the content was deemed illegal and as a result taken down should
be clearly and rapidly conveyed to the business user. The procedure envisaged in the
platform-to-business Regulation could offer an efficient procedure of notice to draw upon.
Lawful but harmful content:
The notion of legal but “harmful” content should not be defined or legislated under the
DSA. This would tip the balance of protecting consumers and businesses from harm and
instead breach fundamental rights such as: human dignity, freedom of expression,
freedom of association, freedom to do business and potentially breach privacy. Instead,
the focus should be on describing a clearer definition of what illegal content is in order to
solve these greater societal damages. This would also give clearer responsibilities for
those involved in its removal. Otherwise, widening these responsibilities also to “harmful”
content would not only take the benefit of these efforts away but inadvertently restrict the
rights of EU citizens and potentially 3rd country citizens when applied ex-territorially.
While it could be difficult to legally define “harmful” (but not il egal) content, we recognise
the potential issue of fragmentation at national level if Member States move to adopt
multiple different initiatives on similar subjects in this area. Self- and co-regulatory
initiatives at the EU level, including the EU Code of Practice on Disinformation have been
a first step. Other initiatives such as the European democracy action plan have the
opportunity to deal further with the issue of harmful content online.
2. EX-ANTE REGULATION FOR “GATEKEEPER” PLATFORMS:
Online platforms have become a vital part of the digital economy. Many consumers and
businesses users benefit from the various services they offer. By bringing together large
number of different users and offering enabling technology, platforms have been able to
develop the digital economy and lower the costs of doing business at scale. They have
incentives to maintain user trust on both sides to ensure engagement.
In some cases, such platforms are achieving a so called “gatekeeper” position. While
some platforms are considered to be in this so cal ed “gatekeeper” position, it does not
automatically mean they are systematically abusing such position. Abuse of a
“gatekeeper” position can take place through carrying out activities that impede effective
competition through creating market failures or lock-in effects. Lock-in effects can
generate difficulties for business users who want to change the platform they are utilising
or have no alternative.
The aim of the Commission should be to ensure contestability of digital markets by other
players. Markets should also be open and contestable to new entrants in all aspects. We
should also understand how certain contractual terms or practices imposed by so called
“gatekeeper” platforms may impact fair competition within a specific market.
However, it is unclear which platforms the Commission considers to be a "gatekeeper"
as well as the criteria as to how these characteristics should be measured. Appropriate
and practicable thresholds for the scope of application could be useful, in order to avoid
that other smaller platforms serving only niche markets are regulated in an unbalanced
manner at the same time (eg. specific industrial platforms that have different market
realities to the wider platform economy due to their high degree of specialisation and
more closed nature). Scalability and the network effects derived from the intermediary
should be the focus.
In this regard, thorough and efficient application of existing competition rules, that aim at
demand markets to be open to new entrants, is of paramount importance. The principle
of undistorted competition within markets provides the freedom for any market players
to develop and expand their businesses and the emergence of new products and
services. Competition rules are designed to safeguard this principle by sanctioning non-
competitive actions from inside and outside of markets, eg. abusive market behaviour of
dominant global market players and by ensuring the absence of interventions of public
authorities in functioning markets. In particular, the ex-post control mechanism for the
abuse of a dominant position, as laid down in Article 102 of the Treaty on the functioning
of the European Union (TFEU), allows for undistorted competition within markets while
also tackling abusive behaviour in general through benchmarks set by the case-by-case
decisions. The ex-post design of the control mechanism ensures that authorities do not
intervene in functioning market process unless a non-competitive disruption of these
processes or market failure has been proven.
However, there is some concern that some of the markets on which these global
platforms are active have tipped in response to the rapid emergence of the digital
economy. Moreover, there is a concern not only that customers and competitors may be
exploited but that new players may struggle to enter these markets and neighbouring
markets which in turn could be hampering the emergence of new products and services
which could otherwise benefit European consumers. There is a concern that the
behaviour of powerful global online platforms could be exacerbating the current situation
through the use of certain contractual terms or practices. Against this background, we
welcome the opportunity to contribute to the debate on the basis of these concerns as
well as on how to address these alleged challenges through an ex-ante regulation of
Any new rules or mechanisms should have solid evidence, due process and governance
in this regard to avoid legal uncertainty and arbitrary decisions in order to keep the spirit
of the existing framework. The relationship of a possible ex-ante regulation for
gatekeeper platforms with the proposals being consulted on in parallel for a potentially
New Competition Tool and existing regulation needs to be clarified. Clear criteria defining
what a “gatekeeper” intermediary is should also be required so that predictability is
supported and the growth of an intermediary is not deterred due to uncertainty. It should
be clear that the potential ex-ante regulation will only apply to platforms acting as
Consumers welfare must remain the ultimate goal. As markets are rapidly evolving with
the state of technology any new mechanism should remain future-proof and technology
neutral. End-users should be provided with an improved freedom of choice by preventing
operator selection of the content and services available on their devices. This can be
achieved through avoiding commercial and technological barriers that limit the effect of
competition and innovation in the market.
The Commission needs to acknowledge that, although there is no one-size-fits-all
approach, general evidence based ex-ante rules for gatekeeping platforms in the online
world may be useful. At the same time, the Commission needs to also consider that
network effects are not the same for platforms with localised offers that are subject to
local legislation and therefore limit network effects in practice.
Further to the comments above on the specific ex-ante mechanism, in line with its Data
Strategy, BusinessEurope also calls on the European Commission to swiftly move
forward in creating its proposed European Data Spaces and facilitating voluntary data
pooling. Drawing on GDPR Art 20, user-centric data mobility mechanisms can lower
barriers to entry, facilitate users’ multi-homing and therefore alleviate concerns related
to accumulation and monopolisation of data.
3. PLATFORM WORKERS:
The EU should encourage Member States, while taking rulings of the CJEU and relevant
national court decisions into account, to assess the different characteristics of workers
to determine whether they are more appropriately classified as an employee or self-
employed and therefore by which labour law and social protection requirements they are
The labour markets and social security systems across the EU are equipped differently
in each Member State when it comes to new forms of work. Therefore, platform work
must be dealt with within the context of national legislation. The EU has already
established legal instruments to ensure that those people working in new forms of work,
for example on platforms, can be protected. It is now a matter of proper implementation
and enforcement at national level. An EU legislative initiative on platform work is neither
necessary nor appropriate for the following reasons:
The recently agreed EU legislation on transparent and predictable working
conditions already has minimum provisions targeted at people working on
platforms who are categorised as employees, i.e. related to the provisions on ‘on-
Recommendation on access to social protection, including relating to self-
The recently agreed regulation on promoting fairness and transparency for
business users of online intermediation services, the so-called “Platform to
Business (P2B) Regulation”, already places obligations on platforms to be more
transparent about their terms and conditions towards the business users of the
platforms, including regarding ranking systems (for those platforms that have
them), and to provide an internal complaint handing system.
With the increased transparency on terms and conditions and other measures
provided by the P2B regulation, self-employed individuals working on platforms
will have more information to enable them to choose which one to use.
Many people wish to work in a self-employed capacity as they are not bound by
contractual obligations towards an employer and they have flexibility to organise and
control their own schedule, develop their own business etc. This is also true for self-
employed. Furthermore, this is consistent with promoting measures against undeclared
work, which has a negative impact on employees and the economy in general in terms
eg. tax collection.
If you have well-functioning labour markets within which different legal statuses are well
framed at national level, being self-employed is normally a positive choice you make.
Clarity must also be found at national level regarding the rights and obligations of
workers, including platform workers, depending on their legal status, to avoid labour
market fragmentation. This should take into account the specificities of each country,
avoiding creating barriers for new forms of work to flourish while ensuring the appropriate
access to social protection coverage. Taking into account the impact of the Covid-19
pandemic in public health, it is also important that platform workers have appropriate
access to health provisions, according to their classification eg. as an employee or self-
employed. Those provisions are determined at national level according to their labour
law and social protection systems. Where problems occur is often where labour markets
are not well-functioning and people may turn to such types of work due to the absence
of others. Therefore, the aim should be to create better functioning labour markets (e.g.
through the European Semester process), and to avoid making it more difficult to be self-
There is not a typical ‘platform worker’ and they are not a clearly defined group. Some
people offer their services through platforms to top up their income from another job. As
stated by Eurofound,
this means that they are often represented through other means
by way of their main employment. For others, it is their primary source of income. This
also varies across countries and cities, including for the same platform. This shows that
there are many different ways in which people choose to do platform work and many
different reasons for choosing this form of work. In these circumstances, one-size-fits-all
proposals for “platform workers” are flawed.
Those working on platforms are also generally free to work on numerous ones, e.g. they
do not have any exclusivity with one. Measures to reduce this flexibility would be
detrimental to the consumers, the professionals and the platforms. Whilst there are some
commonalities between platforms,
business models differ greatly. These
differences make it impossible to generalise the nature of work, the employment status
and the applicable social protection scheme. For all these reasons, regulating ‘platform
work’ as such does not make sense, given the diversity of such work, the different
business models and the individuals working through platforms.
Collective representation and links with competition policy:
It is solely up to Member States and social partners at national level, respecting the
different industrial relations systems, to decide if and how to tackle the issue of
representation of workers engaging in new forms of work, and whether and how they
need to adapt to carry on fulfilling their mission to represent collectively employers and
workers’ interests. It would harm national industrial relations systems and would breach
the principle of subsidiarity to seek a harmonised approach on this at EU level. Indeed,
it is doubtful whether the EU has the legal competence to legislate on matters relating to
collective representation at all.
It is also necessary to reflect the large diversity of situations across Member States,
systems, in which self-employed cannot be member of a trade union or be
covered by collective agreements;
self-employed joining/being represented in existing trade unions;
creation of new trade unions to represent certain categories of workers (including
platform workers), which in some cases negotiate working conditions de facto;
creation of independent unions of platform workers extending certain (employee)
labour rights and protections and collective bargaining possibilities to specific
occupations or to specific categories of workers (e.g. dependent self-employed);
creation of associations of self-employed, which depending on the national
legislation may have the right to negotiate a collective agreement without
infringing anti-trust regulation;
exemptions at national level to competition rules prohibiting cartels for certain
forms of self-employed, sectors or occupations, thereby giving them a right to
co-operatives, other informal structures or private companies organising and
providing services to self-employed, e.g. help with invoicing, access to training,
or pooling resources to offer sick, maternity and holiday pay, but not giving the
legal possibility to bargain collectively or sign agreements;
platforms developing their own solutions, e.g. codes of conduct and
complementary social benefits.
Self-employed, including those offering their services working on platforms, carry out
their services for and with commercial contractors and are considered as undertakings.
Therefore, they are subject to the rule of prohibition of price cartels between economic
actors. It is therefore logical that agreements made between self-employed persons
generally go against the rules of EU competition policy, as they are considered as
restricting or distorting competition within the internal market, when, for example, they
directly fix prices, including wages or fees.
Additionally it has to be acknowledged that the possibility for exemptions to be made for
agreements or bargaining practices that promote economic progress and in relation to
public interest, has been interpreted in case law of the European Court of Justice (ECJ)
as exempting collective agreements for employees from the scope of competition law.
The ECJ underlined correctly the role and autonomy of social partners in a number of
Member States to set (e.g.) wages as part of collective bargaining.
Even though, whilst article 101 of the TFEU does not explicitly include an exemption from
competition rules for agreements on pay and working conditions, this is the case in some
national law. This is of course a decision for the national level and it also shows that the
existing rules, interpreted by the courts, already provide the necessary elements of
flexibility. Therefore, there is no need to change existing EU competition rules to allow
self-employed persons, including those working on platforms, to engage in collective
bargaining or agreements concerning wages.
For justified and valid social reasons, collective agreements establish a type of price
cartel for employees, by setting wages. However, this is a completely different situation
to self-employed, who are undertakings/economic operators, for which the same social
reasons cannot/do not apply.
Any attempt to undermine or subjugate competition law in order to address alleged bogus
or false self-employment is not appropriate. If workers are found to be bogus or false
self-employed, according to national legislation, they should be treated in the same way
as employees, including all rights and obligations of an employee, as this is a
misapplication of the legal status of self-employed and does not require any further EU
If some workers are categorized as self-employed, but in actual fact the characteristics
of their work qualifies them as employees according to the national legislation, then this
should be clarified by discussing the distinction between being self-employed and an
employee – not by extending employment rights, such as the right to negotiate a
collective agreement, to self-employed persons.
It would also likely stifle the creation and development of new, innovative business
models, including platforms, on which predominantly self-employed persons operate.
Given the differences between individuals working through platforms, e.g. in terms of the
amount they use it, whether it is their main source of income or not, and the fact that they
often work not through one but a number of different platforms, there would be inherent
difficulties in copy-pasting salaried employment collective bargaining arrangements to
such a diverse group and it would not allow for legitimate representation of their different
Where solutions are being developed outside social dialogue structures, such as in the
form of self-regulation initiatives or codes of conduct, or providing possibilities for
collective representation to some categories of self-employed, as is the case in some
countries or by some platforms, it is important that the role of recognized social partners
In all cases, only the recognised social partner organisations should have the
mandate/right to negotiate and implement collective agreements and the decision on
which are the recognised social partner organisation is for the national level, according
to their industrial relations system.
Competition policy should not act as a barrier to the freedom to form an association (e.g.
an informal group wishing to represent themselves towards the management of a
platform) and the ability to discuss working conditions, training etc. However, discussions
on elements such as prices, fees, including wages, if done by a group of self-employed,
would breach rules on cartels. This is only possible for employees within the context of
train union membership – covered under collective bargaining. It is also important that
this does not undermine the business model of certain platforms whereby individuals are
working via a number of different platforms, allowing representatives of specific groups
of gig workers to represent the interests of competing platforms.
BusinessEurope stands ready to contribute with further analysis as this process
progresses in order to support relevant legislators. We believe that consideration of the
various types of platforms that exist and content they display should be central to any
reform. At the same time, further legal clarity will be needed on what is actually deemed
illegal under the DSA and what issues will be left to be covered in other legislation. As a
result, clearer upgraded responsibilities in relation to notice and takedown can be
understood. This would be a first beneficial step in this area to ensure Europe has a safe
and fair online market for consumers and businesses customers to continue benefitting
In relation to gatekeeper platforms that have potential market effects, the idea for a
specific ex-ante control mechanism to be used in relation to global gatekeeper platforms
should be carefully considered. In addition, policy-makers should carefully assess the
interaction with existing regulation, such as the P2B Regulation and the possible effects
between ex-ante regulation and ex-post competition law enforcement on each other.
Such a mechanism must not contradict existing competition law rules, in particular Art.
102 TFEU, nor set lower intervention standards that would circumvent competition rules.
Due process will be key to ensure arbitrary actions are not taken.
In relation to platform workers, we agree that the Commission should continue to map
the situation and policy responses across Member States and develop a repository of
practices, as this would be useful to better understand the commonalities and differences
of national approaches to this issue. As a follow-up to the information gathering and
analysis, the EU should facilitate a better understanding and learning between Member
States and social partners on how to deal with the challenges faced and the solutions
found, by organising tripartite discussions on this topic.
Discussions and learning could focus on:
Challenges faced and solutions developed regarding collective representation of
employees and self-employed in the collaborative economy. This should cover
diverse national approaches, including binary systems where solely employee
and self-employed categories of workers exist and other systems where more
than 2 categories exist.
How member states assess the different characteristics of workers when
setting/adapting definitions of employees and self-employed, including in view of
new forms of work, and thereby determining which labour law and social
protection requirements apply. This should include learning on any specific
criteria used by Member States and the influence of ECJ rulings.
Where Member States and social partners ask for it, the EU should support development
of innovative initiatives, for example on worker representation, collective bargaining,
access to social protection and measures to improve working conditions, in line with
national industrial relations systems and practices. This can include initiatives led by
industry, specific sectors, social partners and individual platforms. This can be done
through compilations of practices and exchanges between Member States and social
partners. There should be a clear acknowledgment that what works in one context may
provide inspiration to others, but it is not necessarily replicable.
Before the Commission develops any opinion or approach on the issue of collective
bargaining, self-employed and competition law in relation to platform workers, it should
provide an overview/clarification of the different existing options for exemption from EU
competition rules, e.g. in relation to public interest and economic progress, and how such
exemptions cover bargaining and agreements on social topics, including through
interpretation by the ECJ and national competition rules. The Commission's recent
announcement to look at competition law and self-employed platform workers should be
supported by an impact assessment as part of any public consultation. This could be
followed up by a discussion with Member States and social partners.