Smart Public Procurement and Labour Standards: Pushing the Discussion after RegioPost

by Albert Sanchez-Graells

Overview

Smart procurement aims to leverage public buying power in pursuit of social, environmental and innovation goals. Socially-orientated smart procurement has been a controversial issue under EU law. The extent to which the Court of Justice (ECJ) has supported or rather constrained its development has been intensely debated by academics and practitioners alike. After the slow development of a seemingly permissive approach, the ECJ case law reached an apparent turning point a decade ago in the often criticised judgments in Rüffert and Laval, which left a number of open questions.

The more recent judgments in Bundesdruckerei and RegioPost have furthered the ECJ case law on socially orientated smart procurement and aimed to clarify the limits within which Member States can use it to enforce labour standards. This case law opens up additional possibilities, but it also creates legal uncertainty concerning the interaction of the EU rules on the posting of workers, public procurement and fundamental internal market freedoms. These developments have been magnified by the reform of the EU public procurement rules in 2014.

This book assesses the limits that the revised EU rules and the more recent ECJ case law impose on socially-orientated smart procurement and, more generally, critically reflects on potential future developments in this area of intersection of several strands of EU economic law.

Product Details

ISBN-13:	9781509939503
Publisher:	Bloomsbury Academic
Publication date:	06/25/2020
Pages:	312
Product dimensions:	6.14(w) x 9.21(h) x 0.65(d)

About the Author

Albert Sanchez-Graells is Reader in Economic Law at the University of Bristol Law School and Member of the European Commission Stakeholder Expert Group on Public Procurement.

Table of Contents

Acknowledgements v

List of Contributors xiii

List of Abbreviations xv

1 Introduction Albert Sáncbez-Graells

I Editor's Note 1

II Book Structure and Outline 3

Part I Constitutional and Internal Market Aspects of the Enforcement of Labour Standards through Social Smart Procurement in the EU

2 RegioPost-A Constitutional Perspective Phil Syrpis 11

I Introduction 11

II The Nature of the Constitutional Puzzle 12

III The Admissibility Challenge 14

IV The Assessment of the Legality of the Regional Law 17

A The Court's Approach 18

B The Disagreement with Advocate General Mengozzi 20

V An Analysis of the Relationship between Primary and Secondary Law 21

A The Applicability of Primary and Secondary Law 22

B The Relationship between Primary and Secondary Law 24

VI Conclusions 27

3 Article 56 TFEU and the Principle of Proportionality: Why, When and How Should They be Applied After RegioPost? Piotr Bogdanowicz 29

I Introduction 29

II Case Law Relating to Minimum Wage in Public Contracts 30

A Rüffert 30

B Bundesdruckerei 31

C RegioPost 32

D One Topic, Different Approaches? 34

III In between Primary and Secondary Law: The Treaty, the Posted Workers Directive and the Public Procurement Directives 36

IV Why Proportionality Could Matter in RegioPost 40

V Conclusions 44

4 Upholding General Principles versus Distinguishing Cases: On the Use of Precedent in EU Public Procurement Law (A Case Study) Roberto Caranta 45

I Introduction 45

II Laval: Laying the Ground for Rüffert 48

III Rüffert 52

IV Rundesdruckerei 54

V RegioPost 57

VI Between Very Different Facts and Somewhat Different Rules 59

VII Conclusions: How to Treat the Precedents of the Court of Justice? 62

Part II Procurement and Market Perspectives of the Enforcement of Labour Standards in the EU

5 Living Wages in Public Contracts: Impact of the RegioPost Judgment and the Proposed Revisions to the Posted Workers Directive Abby Semple 69

I Introduction 69

II Relevant Law Prior to 2016 73

A The Posted Workers Directive 73

B The Laval Quartet 76

C Rundesdruckerei and RegioPost 79

III Changes in the 2014 Public Procurement Package and Proposed Revisions to the Posted Workers Directive 82

A Article 18(2) of the 2014 Public Procurement Directive, the 'Mandatory Social Clause' 83

B Recitals 37 and 98 of the 2014 Public Procurement Directive 85

C Use of Contract Award Criteria Based on Payment of a Living Wage 86

D Contract Performance Clauses 88

E Proposed Changes to the Posted Workers Directive 89

IV Conclusions 90

6 Competition and State Aid Implications of 'Public' Minimum Wage Clauses in EU Public Procurement after RegioPost Albert Sánchez-Graells 93

I Introduction 93

II Brief Discussion of Selected Issues in the RegioPost Judgment of Particular Relevance for its Economic Assessment 97

A Asymmetry between Cross-border and Inter-regional Provision of Services to the Public Sector Leading to Reverse Discrimination of (Domestic) EU Economic Operators 99

B The Interaction with other 'Smart Procurement' Rules in the 2014 Public Procurement Directive can Result in De Facto Labour-based Domestic Protectionism 103

III Competition Implications 105

IV State Aid Implications 109

V Conclusions 112

7 Public Procurement and Business for Value: Looking for Alignment in Law and Practice Nina Boeger 115

I Introduction 115

II Business for Value 117

III Procuring from Business for Value 122

IV Public Procurement Law 127

V Flexibility within the Law 129

A Substantive Criteria 130

B Procedural Flexibility 133

C Reserved Contracts 134

VI Conclusion 136

Part III Labour Law Perspectives of Social Smart Procurement in the EU

8 The Operation of Labour Law as the Exception: The Case of Public Procurement Lisa Rodgers 141

I Introduction 141

II Labour Law and the Market in the EU 143

III The Public Procurement Directives: The Inclusion of Labour and Social Standards 149

A The Benefits of Inclusion 150

B The Difficulties of Inclusion: Labour Law as Exception 153

IV Labour Law as Exclusion in the Case Law of the Court of Justice 157

V Conclusions 162

9 Government as a Socially Responsible Market Actor After RegioPost ACL Davies 165

I Introduction 165

II Social Goals in Procurement 167

III RegioPost in Context 171

A Contract Performance Requirements in the 2004 Public Procurement Directive 172

B The Ruling in RegioPost 174

C Analysis 178

D Contract Performance Requirements in the 2014 Public Procurement Directive 180

IV Discussion 185

A Legitimate Aim 186

B Disadvantage 188

C Posting 191

V Conclusions and Future Prospects 194

10 Fair's Fair: Public Procurement, Posting and Pay Catherine Barnard 195

I Introduction 195

II The Legal Issues at Play 196

A Migrant versus Posted Workers 196

B The Interplay between the Posted Workers Directive and the Procurement Directive 199

i Contract Fulfilled by National Bidder or Out-of-State Bidder Using Labour from the Contracting State 199

ii Contract Fulfilled by Out-of-State Bidder Using its Own Labour: Work Performed in Bidder's Own State 199

iii Contract Fulfilled by Out-of-State Bidder Using its Own Labour: Work Performed in Contracting Authority's Own State 200

III What is Pay? 203

A The Meaning of Pay under the Posted Workers Directive 203

i Minimum Rates of Pay as Laid Down by Law or Collective Agreement 203

ii Voluntary Higher Rates 203

iii RegioPost 205

B Other Allowances 206

IV Amendments to the Posted Workers Directive 208

A The Amendments 208

B The Member States' Response 212

V Conclusions 212

11 Collective Bargaining and Social Dumping in Posting and Procurement: What Might Come from Recent Court of Justice Case Law and the Proposed Reform of the Posted Workers Directive? Tonia Novitz 215

I Introduction 215

II The Idea of 'Social Dumping' and its Implications for 'Fair' Competition 217

III The Scope for Collective Bargaining for Posted Workers under the Laval and Rüffert Case Law 221

A Laval and Inexcusable Action in Pursuit of an Unenforceable Collective Agreement 222

B Rüffert and the Failings of a Sectoral Collective Agreement in a Public Procurement Context 225

IV Collective Bargaining Reforms in the Context of Austerity after 2010: Or How the 'Universally Applicable' Collective Agreement was Eroded 227

V The Implications for Posted Workers and the Court of Justice Response 230

A The ESA Case: Local Trade Unions in Protection of Posted Workers' Interests 231

B RegioPost and New Options for Protection of Public Sector Labour Conditions? 234

VI The Case for Legislative Reform: New Possibilities for Collective Bargaining Regulation or Just Evidence Regarding Social Dumping? 235

A The Objectives and Abandonment of the Draft Monti II Regulation 236

B Another 'Yellow Card' but No Withdrawal of the 2016 Proposal for Amendment of the Posted Workers Directive 237

VII Conclusions 240

Part IV Perspectives on Social Smart Procurement Beyond the EU

12 RegioPost and Labour Rights Conditionality: Comparing the EU Procurement Regime with the WTO Government

Procurement Agreement Maria Anna Corvaglia 245

I Introduction 245

II The Tension between Non-Discrimination and Labour Rights' Conditionality in Public Procurement 249

III The Regulation of Production Methods and Processes and the Principle of Non-Discrimination 252

IV Permitted Exceptions and Derogations from the Principle of Non-Discrimination 256

V Procedural Requirements under the WTO and the EU Regimes and the Case of Special Conditions for the Performance of Public Contracts 260

VI Conclusions 263

13 A View from Outside the EU: Uncitral's Approach to Balancing Economic and Social Considerations in Public Procurement Caroline Nicholas 265

I Introduction 265

II International Labour Standards and their Application at the National Level 266

III Labour Standards in Public Procurement 268

IV Non-Discrimination and Equality of Treatment in the Legal Framework Governing Public Procurement Beyond the EU 270

V The Application of Labour Standards under the Uncitral Model Law on Public Procurement (2011) 275

VI Equality of Treatment and Non-Discrimination under the Uncitral Model Law 281

VII Conclusions 287

Index 289

Editorial Reviews

"[T]he book is an interesting example of how a few cases from the ECJ can have an impact on EU law as well as on national law in so many aspects. Generally, the book is a good contribution to the discussion on the incorporation of labour standards, but it is an even better contribution to understanding the reasoning of the ECJ and can hence be read by anyone with an interest in EU law... the book is a significant input to the ongoing debate on the topic of the enforcement of labour standards in public procurement as well as from a general EU law perspective." --Common Market Law Review

From the Publisher