The Achilles Heel of the Platform-to-Business Regulation: No Unfair Term Protection for Platform Workers?

Abstract

The rise of digital labour platforms has significantly altered traditional employment dynamics, creating diverse working conditions and employment relationships. Platforms create an ecosystem in which they prescribe standard contract rules, allowing more actors to efficiently find and connect with each other. In order for both consumers and platform workers to use the platform and connect, they need to accept the pre-dictated contractual terms by accepting the terms and conditions. Even though these standard contracts contribute to efficiency and reduce bargaining costs, these potential advantages can be hollowed out if there is a complete lack of actual bargaining power, which may result in unfair contract terms. This article examines the power imbalances and unfair terms that can often be perceived in platform work contracts, particularly focusing on how these imbalances manifest in platform’s terms and conditions. This article highlights the contractual vulnerabilities of platform workers by analysing the terms of five major platforms, namely Deliveroo, Uber, Upwork, Clickworker, and Amazon Mechanical Turk. It further scrutinises the effectiveness of existing legal frameworks in addressing these imbalances from a platform worker point of view, focusing on the Unfair Contract Terms Directive (UCTD) and the Platform-to-Business (P2B) Regulation while briefly touching on the new Platform Work Directive. The UCTD provides protection against unfair terms that have not been individually negotiated, though limits this protection to consumers captured in business-to-consumer relationships. This limitation renders the UCTD inapplicable to most platform workers, as the majority are self-employed and therefore fall outside the consumer protection realm. In the P2B Regulation, requirements for the clarity, content and modification of the terms are imposed. The question is, however, how effective this instrument is for remedying the contractual power balance and what impact this Regulation has specifically on labour platforms. While the European Commission clearly intended all online platforms to fall within the Regulation’s scope, it is not entirely clear if and to what extent the Regulation applies to labour platforms. This article therefore analyses whether platform workers can be considered “business users” and whether labour platforms can be considered “online intermediation service providers”. In this analysis, significant gaps are revealed that consequently leave platform workers inadequately protected. Furthermore, an apparent discrepancy in conception between the Commission and the Court of Justice is discovered, since the former seems to believe the Regulation applies to Uber and other transportation platforms while the latter has ruled in its Elite Spain judgment that Uber is to be excluded from the information society service definition. A (potentially unintended) consequence of this judgment is the fact that Uber has now been seemingly precluded from the Regulation’s scope, meaning that Uber drivers cannot benefit from its protective provisions. Further, the analysis of the terms and conditions showcases which of the five platforms are in compliance with the P2B Regulation and highlights substantial non-compliance, even multiple years post-implementation. The conclusion emphasises the need for a holistic legislative approach to protect all platform actors and ensure fairness and transparency in platform relationships. It advocates for a unified framework that promotes compliance through effective public enforcement mechanisms.