Self-employed workers and digital platforms: where do we stand?

France

The French Labor Code only recognizes two types of workers: employees and self-employed workers. In principle, workers using digital platforms have the status of self-employed workers[1]. However, it must be noted that case-law is not steady on this topic, since the Court of Cassation has, on several occasions, reclassified relationships between independent workers and digital platforms into employment contracts[2], while certain courts of appeal have refused to recognize the status of employees to self-employed workers[3].  

At the same time, domestic law is constantly being enriched in an attempt of regulating relationships between the ever-increasing number of players in the GIG economy.

This is also looked at European level since European Commission has recently proposed three new instruments to regulate work done via digital work platforms that could be adopted during 2022.

1. Regulation of the relationship between digital platforms and self-employed workers under French law 

Since 2016, the Labor Code contains provisions applying to workers on digital platforms. In this respect, a distinction must be made between those applying to all platforms and those being specific to mobility platforms.

A. Provisions applicable to all platforms

Articles L. 7341-1 et seq. of the French Labor Code apply to self-employed persons who use one or more platforms as defined by Article 242 bis of the French General Tax Code, i.e. companies, regardless of their place of establishment, putting people in contact with each other remotely, by electronic means, with a view of selling a good, providing a service, or exchanging or sharing a good or a service.  

Social responsibility of the platform

When the platform determines the characteristics of the service provided or the good sold and sets its price, it has a so-called social responsibility towards the workers concerned[4].

This social responsibility translates into the payment of contributions by the platform when the worker takes out insurance covering the risk of work-related accidents or joins the voluntary insurance scheme mentioned in Article L. 743-1 of the Social Security Code, as well as paying the contributions for professional training[5]. The worker's personal training account (“compte personnel de formation”) is also topped up by the platform when the turnover made by the worker on this platform exceeds a certain threshold determined by sector of activity.

When several platforms are required to pay the above-mentioned contributions, each of them reimburses them in proportion to the turnover that the self-employed worker made through their intermediary, in relation to the total turnover that he or she made during the calendar year through the various platforms. 

These contributions are not applicable when the turnover made on the platform during the calendar year for which the contribution is due is lower than 13% of the annual ceiling of the social security, i.e. 5347,68 euros. 

Collective rights of workers 

Workers may create and join a trade union and represent their collective interests through it[6]. If there are several members within a platform, the union may form a trade union group[7]

Workers may also participate in a strike in order to defend their professional claims, without this constituting grounds for terminating their contractual relations with the platforms or justifying retaliation measures in the exercise of their activity, unless there is abuse. These strikes are not subject to a declaratory procedure nor are they reserved to trade unions.  

B. Rules applicable only to mobility platforms 

Platform workers who operate in the mobility sector (drivers and goods deliverers using a two- or three-wheeled vehicle, whether motorized or not) benefit from additional guarantees to those set out above.

Social responsibility policy

Platforms can implement a policy determining the conditions and procedures for exercising their social responsibility, defining rights and obligations and those of the workers with whom they are in contact. This is an option and not an obligation.

If implemented, this social responsibility policy must contain the following provisions[8]:

1° The conditions for the exercise of the professional activity of the workers with whom the platform is in contact, in particular the rules according to which they are put in contact with users as well as the rules that can be implemented to regulate the number of simultaneous connections of workers in order to respond, if necessary, to a low demand for services by users. These rules shall guarantee the non-exclusive nature of the relationship between the workers and the platform and the freedom of the workers to use the platform and to connect or disconnect, without imposing time limits on their activity; 

2° The terms and conditions enabling workers to obtain a decent price for their services; 

3° The methods for developing professional skills and securing professional careers; 

4° Measures aiming at: 

a) Improving working conditions ; 

b) Limit occupational risks to which workers may be exposed as a result of their activity, as well as damage caused to third parties; 

5° The procedures for sharing information and dialogue between the platform and the workers on the conditions under which they carry out their professional activity; 

6° The methods by which workers are informed of any change in the conditions under which they carry out their professional activity; 

7° The quality of service expected, the methods of control by the platform of the activity and the circumstances that may lead to a termination of commercial relations between the platform and the worker as per Article L. 442-1 of the French Commercial Code, as well as the guarantees from which the worker benefits in this case; 

8° Where applicable, the supplementary social protection guarantees negotiated by the platform from which the workers may benefit. 

This policy is transmitted by the platform to the administrative authority. The administration assesses compliance of the policy with these provisions by approving it. When approved, the implementation of the policy cannot characterize the existence of a legal relationship of subordination between the platform and the workers (which constitutes the key driver for an employee status).

Workers’ representation  

Mobility platform workers can be represented by professional unions or associations constituted under the law of July 1, 1901, whose purpose covers the representation of these workers and the negotiation of agreements applicable to them.  

To be representative, the organizations must meet 7 cumulative criteria (respect of republican values, independence, financial transparency, minimum existence of one year in the sector, audience of 8% of the votes cast, influence and number of members and contributions).  

In order to measure the audience of trade unions in the sectors concerned, a ballot is organized every four years by the ARPE (the Authority of Social Relations of Employment Platforms). The first ballot will take place before December 31, 2022. 

Workers using a platform who have been working in the sector for at least three months are eligible to vote[9]. The electoral lists are drawn up by the ARPE, in accordance with the procedures defined by Decree by the French Council of State (the “Conseil d’Etat”). 

The organizations qualifying as representative then appoint a number of representatives determined by Decree. The ARPE communicates the names of these representatives to the platform using them. 

These workers' representatives are protected against the risk of termination of the commercial contract. This can only be done after authorization from the ARPE, which must ensure that the termination is not linked to the worker's representative functions.  

Terminating a commercial contract without authorization is subject to criminal sanctions.  

In addition, the representative may bring an action before court in order to put an end to the situation and claim compensation for the damage he or she has suffered[10].

Performance of the service  

Pursuant to the provisions of Articles L.1326-2 et seq. of the Transportation Code, since March 1, 2021, platforms must inform workers, when they offer them a fare, of the distance covered and the minimum guaranteed price they will receive, minus the platform's fee. Workers may refuse a proposal for a transport f are without being subject to any penalty. In particular, the platform may not terminate the contractual relationship with the workers on the grounds that they have refused one or more proposals.  

The platform must publish on its website, in a fair, clear and transparent manner, indicators relating to the duration of activity and the income of the workers working for the platform, during the previous year[11].  

Workers choose their working slots and their periods of inactivity and can freely disconnect. Platforms may not terminate the contract when a worker exercises this right[12].  

2) Towards an harmonization at European level 

If the rules governing platforms currently differ across the European Union, this could change soon.  

Indeed, in December 9th, 2021, the European Commission proposed three new instruments to improve working conditions for platform workers and to promote the sustainable growth of digital platforms in the European Union.  

These measures aim in particular at ensuring better protection for platform workers, who are currently estimated to be 5.5 million across the European Union irregularly classified as self-employed.  

According to the Commission, these new rules are designed to ensure that “people working through digital labour platforms can enjoy the labour rights and social benefits they are entitled to”. 

This common set of EU rules should therefore “bring the platforms increased legal certainty, reduced litigation costs and it will facilitate business planning ".  

Thus, in addition to a communication aimed at promoting better working conditions and draft guidelines, the Commission has presented a proposal for a directive. 

All digital platforms offering services performed by individuals are likely to be affected by this directive, since this text targets digital platforms that provide a commercial service:  

  • at least in part, by electronic mode, by means of a website or a mobile application,

  • at the request of the recipient of the service,  

  • involving, as a necessary and essential element, the organization of work performed by individuals, whether performed online or in a specific location. 

This text aims at ensuring that “people working through digital labour platforms are granted the legal employment status that corresponds to their actual work arrangements”. 

To this end, it establishes a list of five criteria to determine whether the platform is an employer. These criteria are as follows:  

  • supervision of work performance by electronic means, 

  • limiting the freedom to choose one's working hours or absences, to accept or refuse tasks or to use subcontractors or replacements, 

  • setting specific mandatory rules regarding appearance, conduct towards the recipient of the service or performance of the work, 

  • limiting the ability of the individual to build up a clientele or perform work for a third party.

When at least two out of these five criteria are met, the platform will then be presumed to be the employer of the worker, who will consequently benefit from the rights arising from the status of employee in terms of labour law. 

It should be pointed out that this presumption may be overruled if the platform is able to prove that the contractual relationship is not governed by an employment contract. 

The proposed directive also introduces an obligation to provide information by stipulating that platforms must make available to the national authorities essential information concerning their activities and the persons who carry out their activity through them.  

This text must now be examined by the European Parliament and the Council, being specified that if it is adopted, the Member States would then have a period of two years from that date to transpose it into their national law.



[1]Article L.7341-1 of the Labour Code.

[2]Court of cassation, November 28, 2018, n° 17-20079 and Court of cassation, March 4, 2020, n°19-13316.

[3]Court of Appeal of Lyon, February 15, 2021, n°19/08056.

[4]Article L.7342-1 of the Labour Code.

[5]Articles L.7342-2 to L.7342-4 of the Labour Code.

[6]Article L.7342-6 of the Labour Code.

[7]Interministerial circular DGT/RT1/DGEFP/SDPFC/DSS/2C/2017/256, June 8, 2017

[8]Article L.7342-9 of the Labour Code.

[9]Article L.7343-7 of the Labour Code.

[10]Article L.7343-17 of the Labour Code.

[11]Article L. 1326-3 of the French Labor Code.

[12]Article L. 1326-4 of the French Labor Code.