and if wage labor was possible?

Does French justice open the door to wage earning for bicycle couriers, currently self-employed? For the first time, the Court of Cbadation has examined this delicate subject. In a judgment delivered Wednesday, November 28, she recognized a link of subordination and therefore the possibility of salary for a former courier Take Eat Easy, Belgian startup specializing in the delivery of meals by bike. In 2016, the young push went out of business – despite a total of 16.4 million euros raised. She left 2,500 people in France.

As is customary for the platforms of the so-called "collaborative" economy, the takers of Take Eat Easy were forced to resort to the status of auto-entrepreneur to be able to work with the young Belgian sprout. The courier at the heart of the case had signed a service contract. Following the liquidation of Take Eat Easy, he appealed to the prud'hommes to obtain a re-qualification of his employment contract. The prud'hommes had declared themselves incompetent.

Geolocation + power of sanctions = salary

To characterize the relationship of subordination, established by Article L.8221-6 of the Labor Code, the Court of Cbadation has retained two elements. On the one hand, Take Eat Easy was able to geolocate the courier in real time and to count the number of kilometers traveled, "so that the role of the platform was not limited to the relationship between the restaurant owner, the customer and the courier ", emphasizes the highest court of the judiciary in an explanatory note.

On the other hand, Take Eat Easy had power of sanction with regard to the courier. Indeed, many penalties could be inflicted on the courier: "in case of late cancellation of a "shift" (less than 48 hours), partial connection to the "shift" (below 80% of the "shift"), no response to his phone during the "shift" ", inability to repair a puncture, refusal to make a delivery (…)", list the Court of Cbadation.

" This judgment has the merit of saying things clearly: there is no antinomy between labor contract and platform workers ", welcomed with AFP Manuela Grévy, lawyer of the deliveryman and the CGT to the Court of Cbadation.

For Gilles Joureau, a lawyer who defended at the prud'hommes a dozen couriers of Take Eat Easy, all dismissed, "It's a very important decision"he reacted to the agency. " This judgment crowns a long struggle for the recognition of the bond of subordination. " In early November, a similar decision was made in Spain regarding Deliveroo delivery boy.

A scope to relativize

If this French decision is unpublished, its scope is to relativize according to Arthur Millerand and Michel Leclerc, lawyers specialized in platforms and the digital economy, partners of the firm Parallel Lawyers. First, the case is not over because it will be retried by a Court of Appeal. " The requalification remains open in this case », says Michel Leclerc.

" This decision of the Court of Cbadation is not a reversal of jurisprudence because it does not decide the merits of the case. This is a technical decision explaining that the Court of Appeal misapplied the law to the facts "says Arthur Millerand.

The Paris Court of Appeal had retained the independence of the courier for refuse the requalification in contract of work. "The courier was not tied to the digital platform by any exclusivity or non-competition link. He was free every week to determine the times during which he wanted to work or to select none if he did not want to work ", according to the judgment rendered on April 20, 2017.

Delivery startups are regularly accused of resorting to disguised wages. According to their the auto-entrepreneur status gives more flexibility to delivery people by providing them with "income supplement", Not a salary. Impose the status of self-entrepreneur allows them to not have to pay paid holidays, sick leave or not to guarantee a minimum wage … While imposing certain conditions for the exercise of their work, such as availability at the risk of incurring penalties.

"Cis the whole principle of the self-employed. As such, the self-employed are businesses like any other. If constraints are proposed and accepted by the autoentrepreneur, then this is part of the freedom to contract. If we do not agree, then we do not work with this client », says Michel Leclerc.

Towards a third hybrid status?

Faced with this legal vagueness, should we create a third hybrid status, halfway between employee and auto-entrepreneur, or privilege existing statuses such as wage-earning? " Other legal mechanisms could be used to structure the business model of the platforms. However, they would not necessarily agree with the philosophy of these companies, which have a vision of the labor market and society as a whole. ", Judge Arthur Millerand.

"Since 2008, we observe that the labor market is changing. Freelancing and multi-activity are more popular because it corresponds to new aspirations of the badets. For example, it allows you to work when you want, where you want. And for some, it helps to get out of unemployment and inactivity "continues Michel Leclerc.

Faced with this "inevitable societal movement", the two lawyers call for better supervision for these "new segments of the labor market".

"This requalification is nonsense, said in a press release Grégoire Leclercq, president of the National Federation of autoentrepreneurs. It highlights the legal uncertainty that persists in the sector and the urgency for clarification, and especially the adaptation of the law to technological developments ", pointing out that " the platform economy today represents 200,000 independents ".

Since the adoption of the El Khomri law in 2016, "the legislator has outlined a social responsibility of digital platforms (…) by providing minimum guarantees to protect this new category of workers", says the Court of Cbadation. However, the legislator has carefully avoided the thorny issue of the status of these workers.

The law Penicaud 2, relating to the professional project, provided in its article 66 more protection for the couriers of digital platforms. It established the possibility for companies to write a charter, to ensure the non-exclusive runners, for example. The article was finally censored by the Constitutional Council in early September.