The platform economy and social law : Key issues in comparative perspective — Edited by Isabelle Daugareilh, Christophe Degryse and Philippe Pochet Working Paper 2019.10 The platform economy and social law : Key issues in comparative perspective — Edited by Isabelle Daugareilh, Christophe Degryse and Philippe Pochet Working Paper 2019.10 european trade union institute Isabelle Daugareilh is Director of Research at the French National Centre for Scientific Research (CNRS) and at the Centre for Comparative Labour and Social Security Law (COMPTRASEC) of the University of Bordeaux. Christophe Degryse is Senior Researcher at the European Trade Union Institute and Head of the ETUI Foresight Unit. Contact: [email protected] Philippe Pochet is General Director of the European Trade Union Institute (ETUI) and professor at the Université catholique de Louvain (UCL). Contact: [email protected] ETUI publications are published to elicit comment and to encourage debate. The views expressed are those of the author(s) alone and do not necessarily represent the views of the ETUI nor those of the members of its general assembly. Brussels, 2019 ©Publisher: ETUI aisbl, Brussels All rights reserved Print: ETUI Printshop, Brussels D/2019/10.574/25 ISSN: 1994-4446 (print version) ISSN: 1994-4454 (electronic version) The ETUI is financially supported by the European Union. The European Union is not responsible for any use made of the information contained in this publication. Contents Foreword ...................................................................................................................................................... 5 Introduction ................................................................................................................................................ 7 Section 1 Technological disruption, social dereliction? ............................................................................ 11 1. Industry and employment ............................................................................................................ 13 2. The platform economy: key issues ............................................................................................ 19 3. By way of conclusion: the end of the employment relationship? ................................... 29 Bibliographical references ................................................................................................................. 31 Section 2 A comparative legal approach.......................................................................................................... 35 Austria, Günther Löschnigg................................................................................................................... 37 Belgium, Céline Wattecamps .............................................................................................................. 44 France, Isabelle Daugareilh................................................................................................................... 51 Italy, Silvia Borelli ..................................................................................................................................... 63 The Netherlands, Nicola Gundt .......................................................................................................... 74 Romania, Felicia Roşioru ...................................................................................................................... 84 Spain, Miguel Rodríguez-Piñero Royo ................................................................................................ 92 Switzerland, Jean-Philippe Dunand and Pascal Mahon............................................................ 107 United Kingdom, Luke Mason........................................................................................................... 114 United States, Kieran Van den Bergh ............................................................................................. 125 Conclusions ........................................................................................................................................... 139 WP 2019.10 3 The platform economy and social law: Key issues in comparative perspective Foreword Isabelle Daugareilh, Christophe Degryse and Philippe Pochet The topic of the platform economy and its social effects has been the subject of ongoing academic interest and social debate for many years now. Despite the fact that numerous studies have been published, the subject remains difficult to grasp and contextualise due to a lack of accurate and reliable data – in particular in terms of the sector’s economic weight and volume of employment. A further difficulty is that the platform economy is a generic term covering many different business models. For several years now, the European Trade Union Institute (ETUI) has been focusing its research on the digitalisation of the economy and on the platform economy, mainly from a work and employment perspective. What working conditions are platform workers subjected to, how are they trying to organise, what rights do they have, what can they do to uphold them? For its part, Bordeaux University’s Centre for Comparative Labour and Social Security Law (COMPTRASEC) held a European workshop in November 2018 dedicated to a comparative legal approach to the platform economy and the questions it raises in terms of social legislation. Ten countries (Austria, Belgium, France, Italy, the Netherlands, Romania, Spain, Switzerland, the United Kingdom and the United States) representing a wide variety of legal traditions and faced with different levels of digitalisation of the economy were analysed by legal experts for labour and social security affairs: what are the legal conflicts arising from this new business model, how is national jurispru - dence evolving, how are the respective players adapting their strategies? This legal perspective reveals that the platforms are trying to use the gaps and ambiguities in social legislation to arrive at an interpretation in which their business model abrogates all social responsibility towards those working for them. Various court rulings seek to enforce this legislation or instead question the very definition of a worker and an employer. These cases brought to the courts by those involved (very often collective cases) in an attempt to redress the balance of power mean that legislation is set to play a role in renewing the social contract. The work done in parallel by the ETUI and Comptrasec was destined to merge at some stage. This has since happened, with this publication the result thereof. As readers will see, this project complements the legal approach with a general analysis from a historical perspective, contextualising the evolution of WP 2019.10 5 Edited by Isabelle Daugareilh, Christophe Degryse and Philippe Pochet industrial relations in light of technological developments1. This comple - mentary approach enables us to move on from the sterile and often simplistic debates over such questions as: “are robots going to steal our jobs?”; “Are digital platforms on the verge of destroying our social models?” As such, neither robots nor platforms pose such threats. Looked at from a social perspective, technology cannot be analysed on its own. This always has to be done in conjunction with the business model that uses it. The issue at stake is thus how these technologies are being used by certain business models. This merits a wider debate, to which this publication aims to contribute. This debate needs to be constructive, not just focusing on a certain technology, but also on how it is being used by those managing it and on the threats it poses to society at large. This is also a field necessitating laws, as laws can stake the boundaries of the context in which innovations develop. The main feature of this publication lies in this complementary approach. The social and legal questions posed by the platformisation of the economy are very similar to those posed by the social transformations of past industrial revolutions; transformations which served as a lever for bygone institutions to establish, step by step, the social models we now enjoy. What is at stake here is the emergence of a renewed social contract. We hope that this novel approach will help readers to better identify the challenges and to highlight the important role of the actors involved. 1. It is not by chance that our two institutions both belong to the international CRIMT project aimed at taking stock of, and as far as possible comparing, institutional innovations in different fields. 6 WP 2019.10 The platform economy and social law: Key issues in comparative perspective Introduction Christophe Degryse2 The recent emergence of the platform economy, symbolised in Europe by the two frontrunners Uber and Deliveroo, is reshaping business and the way it is conducted. As often seen in similar reconfigurations, a certain fuzziness surrounds this emerging business model and its potential impacts on the economy and labour markets. But what exactly is a digital platform, one of the most decisive technology-driven developments in recent times? And how is it set to turn upside-down the economic and social world as we currently know it? In the first section, we will be looking at the link between technological innovation, the transformation of business (and management) models and the evolution of work. While it is obviously not possible to go through the whole history of technological progress and its effects