The obsolescence of Article 603-bis of the criminal code and the new forms of labour exploitation

Abstract

Article 603-bis of the Criminal Code describes the case of exploitation of labour through the so-called indices of exploitation. The use of this innovative contextual typification technique has application limits, since the indices almost exclusively refer to regulatory parameters typical of subordinate labour. A rigid application of these indices therefore risks excluding from criminal protection forms of degradation of work now widespread in various production contexts, when formally the work is not attributable to the case of subordination. In order to overcome this possible gap in protection, there are two alternatives: either disregard the indices with respect to these new forms of exploitation, or assimilate platform work to subordinate work. However, while it is impracticable, from several points of view, to renounce the indices of exploitation, given the low selective capacity of the typical fact referred to in Article 603-bis of the Criminal Code, the possibility of equating platform work with subordination seems less problematic. However, even if the highlighted obstacles were to be considered surmountable by way of interpretation, further difficulties arise with respect to the multifaceted structure of the global enterprise, where it is increasingly difficult to identify a decision-making centre. This obviously poses problems for the attribution of liability, in view of the fact that there is no regulation of criminal liability in groups of companies and no independent criminal case for those who knowingly benefit from degraded work.

Keywords

• forced labour
• criminal provisions
• labour exploitation
• digital platform