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

Description

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. Acknowledgements Contents List of Contributors List of Abbreviations 1. Introduction I. Editor’s Note II. Book Structure and Outline 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 I. Introduction II. The Nature of the Constitutional Puzzle III. The Admissibility Challenge IV. The Assessment of the Legality of the Regional Law V. An Analysis of the Relationship between Primary and Secondary Law VI. Conclusions 3. Article 56 TFEU and the Principle of Proportionality: Why, When and How Should They be Applied After RegioPost? I. Introduction II. Case Law Relating to Minimum Wage in Public Contracts III. In between Primary and Secondary Law: the Treaty, the Posted Workers Directive and the Public Procurement Directives IV. Why Proportionality Could Matter in RegioPost V. Conclusions 4. Upholding General Principles versus Distinguishing Cases: On the Use of Precedent in EU Public Procurement Law (A Case Study) I. Introduction II. Laval: Laying the Ground for Rüffert III. Rüffert IV. Bundesdruckerei V. RegioPost VI. Between Very Different Facts and Somewhat Different Rules VII. Conclusions: How to Treat the Precedents of the Court of Justice? 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 I. Introduction II. Relevant Law Prior to 2016 III. Changes in the 2014 Public Procurement Package and Proposed Revisions to the Posted Workers Directive IV. Conclusions 6. Competition and State Aid Implications of ‘Public’ Minimum Wage Clauses in EU Public Procurement after RegioPost I. Introduction II. Brief Discussion of Selected Issues in the RegioPost Judgment of Particular Relevance for its Economic Assessment III. Competition Implications IV. State Aid Implications V. Conclusions 7. Public Procurement and Business for Value: Looking for Alignment in Law and Practice I. Introduction II. Business for Value III. Procuring from Business for Value IV. Public Procurement Law V. Flexibility within the Law VI. Conclusion 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 I. Introduction II. Labour Law and the Market in the EU III. The Public Procurement Directives: The Inclusion of Labour and Social Standards IV. Labour Law as Exclusion in the Case Law of the Court of Justice V. Conclusions 9. Government as a Socially Responsible Market Actor After RegioPost I. Introduction II. Social Goals in Procurement III. RegioPost in Context IV. Discussion V. Conclusions and Future Prospects 10. Fair’s Fair: Public Procurement, Posting and Pay I. Introduction II. The Legal Issues at Play III. What is Pay? IV. Amendments to the Posted Workers Directive V. Conclusions 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? I. Introduction II. The Idea of ‘Social Dumping’ and its Implications for ‘Fair’ Competition III. The Scope for Collective Bargaining for Posted Workers under the Laval and Rüffert Case Law IV. Collective Bargaining Reforms in the Context of Austerity after 2010: Or How the ‘Universally Applicable’ Collective Agreement was Eroded V. The Implications for Posted Workers and the Court of Justice Response VI. The Case for Legislative Reform: New Possibilities for Collective Bargaining Regulation or Just Evidence Regarding Social Dumping? VII. Conclusions 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 I. Introduction II. The Tension between Non-Discrimination and Labour Rights’ Conditionality in Public Procurement III. The Regulation of Production Methods and Processes and the Principle of Non-Discrimination IV. Permitted Exceptions and Derogations from the Principle of Non-Discrimination V. Procedural Requirements under the WTO and the EU Regimes and the Case of Special Conditions for the Performance of Public Contracts VI. Conclusions 13. A View from Outside the EU: UNCITRAL’s Approach to Balancing Economic and Social Considerations in Public Procurement I. Introduction II. International Labour Standards and their Application at the National Level III. Labour Standards in Public Procurement IV. Non-Discrimination and Equality of Treatment in the Legal Framework Governing Public Procurement Beyond the EU V. The Application of Labour Standards under the UNCITRAL Model Law on Public Procurement (2011) VI. Equality of Treatment and Non-Discrimination under the UNCITRAL Model Law VII. Conclusions Index