7 February 2024

Pension accrual of ‘bogus self-employed persons’ and ‘platform workers’

By Prof. Hans van Meerten

Last year, the Swedish EU presidency published a draft proposal for a European directive to protect platform workers and combat bogus self-employment.

Before this EU directive becomes law, however, agreement must first be reached with member states and the European Parliament. There have been longstanding concerns about ‘platform workers’ and ‘self-employed persons’ who are often alleged to actually be employees. Estimates suggest that around 28 million platform workers are active across the European labour market. For example, cab drivers or meal delivery persons. The EU wants to improve the working conditions of this group. Various interesting issues are raised by the EU directive, three of which I would like to highlight. But first: what does the proposal regulate?

The proposal

According to the directive, the proposal – part of the European Pillar of Social Rights – aims to:

  • improve the working conditions of platform workers by facilitating the correct determination of their employment status through a rebuttable presumption;
  • improve the protection of platform workers’ personal data by improving the transparency, fairness and accountability of the use of automated monitoring or decision-making systems;
  • improve the transparency of platform work and introduce certain remedies and enforcement measures.

Comments

The directive is mainly based on Article 153 (social policy) of the Treaty on the Functioning of the European Union (Verdrag betreffende de werking van de Europese Unie). However, regulating working conditions of ‘bogus self-employed persons’ and ‘platform workers’ obviously also affects freedom of movement issues. Especially those involving the free movement of workers.

The Court of Justice of the European Union (Hof van Justitie van de Europese Unie) has also provided a framework for the employment status of employee’s in several judgments. The draft text of the directive states that “the interpretation by the Court of Justice should be taken into account”. “Taken into account” sounds too non-committal to me. The directive should scrupulously follow the EU court, which determined, among other things, that:

“classification as ‘self-employed’ under national law does not preclude a person from being classified as a ‘worker’ within the meaning of Union law if their self-employment is merely fictitious and therefore masks a genuine employment relationship”.

Whether this is the case will have to be assessed on a case-by-case basis according to national and EU law. The directive provides no further clarification on this.

This is where the Dutch situation is relevant for the pension accrual of this group. According to the Supreme Court, increasing numbers of ‘platform workers’, such as those working at booking.com and Deliveroo, are required to join a mandatory Dutch pension fund. One might ask whether this is compatible with EU case law and the EU Charter of Fundamental Rights (EU Handvest). The draft directive is partly based on the new EU fundamental right of entrepreneurship (Article 16 of the Charter). Which will play a major role in future case law. The mandatory participation of platform workers in a pension fund appears to relate poorly to this.

More information

If you would like legal advice, or have other pension-related questions, please do not hesitate to contact us. Our experts are ready to help you.

Prof. Hans van Meerten

Prof. Hans van Meerten

Lawyer

Professor Hans van Meerten is a specialist in the field of pension law, financial law and EU law.

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