Rethinking the Concept of the Employer in the Digital Economy: Corporate Fragmentation and Power Dynamics Through Labour Law and Competition Law Lenses

Abstract

This article argues that the transformative dynamics brought along by the digital economy call for a normative rethinking of the allocation of employers' obligations across the value chain, so as to better target the actual holders of labour market power. There is a growing mismatch between the role of the employer as typified in labour law frameworks-as the owner of productive assets and able to conduct its business autonomously-and the limited bargaining autonomy of the firms that gravitate in the ecosystems of digital tech corporations. This phenomenon can be attributed to two parallel trends. The first is the aggravation of contractual and corporate fragmentation, driven by subcontracting and outsourcing practices; while the second is the changing nature of power dynamics among business players, resulting in new forms of market concentration. If left unaddressed, both evolutions would eventually lead to a widespread deterioration of working conditions. The article therefore seeks insights into how the scope of the obligations of the employer might be broadened beyond the contractual employment relationship. To this end, it explores recent normative openings in European Union labour law such as the Platform Work Directive and the Corporate Sustainability Due Diligence Directive. It also draws on competition law developments in the digital economy field, which might provide interesting insights for promoting fairer labour markets in situations of excessive power concentration.

Keywords: Concept of Employer, Digital Economy, Fissuring, Competition Law, Platform Work, Corporate Sustainability Due Diligence, Collective Bargaining

JEL Classification: K31, J38, J53, J81, J83