Abstract
Digital constitutionalism has been defined as « the political process of entrenching rights and principles into the global governance of digital technologies, specifically the Internet ». It is a rather new concept which attempts to grasp the constitutional consequences of the digital changes of the evolving world we live in. It is an emerging concept which raises numerous questions: If it is rather easy to define the word ‘digital’ as relating to data in the form of numerical digits and thus the internet and the web, assembling it with the concept of constitutionalism makes one wonder about the process of studying and/or creating a constitution and whether it is imaginable from different (formal, substantial, procedural and symbolic) perspectives. The questions are the following: why constitutionalism? What role of which institutions? What powers and safeguards? What normative framework? What rights and duties? What values? What sense of belonging?
In order to start answering these questions in the European Union (EU) legal order and in order to confront a theoretical principle to the harsh reality, it is useful to focus on the recent proposal on a directive on platform workers working conditions (COM 2021/762). This proposal is part of an EU package about platform work. It aims at improving the protections given to workers of digital platforms such as Uber, Deliveroo, Glovo, etc. This proposal is a field of experimentation as it puts together digital rights and social rights for the workers as well as an employment presumption. In other words, it is a perfect opportunity to rethink the questions at the heart of digital constitutionalism: From a substantial point of view, it questions the rights and the values which are to be given to EU citizens/workers. From an institutional point of view, it participates to the architecture or institutional design of power-sharing between the organs of the EU and the Member States. It points to the question of the status of those who get rights from the EU (citizens/ persons/ workers/ workers without a contract/ independent workers/ employees…). In a nutshell, it asks whether and how the EU can/wants to build a constitutional framework in light of digital transformation.
This article is part of a research project launched by the Lab MIL (Marchés, Institutions, Libertés), in University Paris East (UPEC) for 2021-2024 regarding platform workers’ social protection in light of social citizenship. This interdisciplinary and comparative study (three disciplines: law, history, and sociology, five countries: France, United Kingdom, Sweden, Spain, and Portugal as well as the European Union) is funded by the French national research agency (Agence Nationale de la Recherche, Projet N° ANR-20-CE26-001-01). For more information on the project, please visit the project website.
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