SOCIAL CLAUSES IN THE IMPLEMENTATION OF THE 2014 PUBLIC PROCUREMENT DIRECTIVES With the financial support of the European Union (original) (raw)
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WP C.S.D.L.E. "Massimo D'Antona" .INT – 153, 2020
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The EU Legality Principle in Public Procurement Contracts
Nordic Journal of European Law, 2020
The early interest that EU law has demonstrated for public procurement contracts has gradually been molded into a sector-specific paradigm of European administrative law. Despite the constant movement of the sector counting already four generations of substantive and two generations of procedural EU law, its qualification as administrative law provides some pillars of stability; as an expression of a sui generis principle of legality, the award of public contracts is organized via formalistic, yet sometimes rigid and time-consuming procedures, due process emerging as a common principle among national and supranational administrative systems. Even though due process constitutes the gateway to accountability, the aim of the paper is limited to underlining the indicators of administrative procedure in the award of public contracts.
Reform of EU Public Procurement Law: Intergovernmental or Supranational Policy-making?
SSRN Electronic Journal, 2018
In 2014 three new procurement directives were adopted at European level, replacing the previous generation of directives from 2004. These directives regulate how approximately €2 trillion of public and semi-public money is spent in the member states, aiming to ensure the free movement of goods and services and competition in the award of public contracts. Environmental and social provisions figure prominently in the 2014 directives, including a number of new rules which must be implemented at national level. The 2014 directives embody the concept of a social market economy as set out in the Lisbon Treaty, and represent an increase in EU integration in the public procurement field. This thesis analyses the role of the European Commission, Council, Parliament and Court of Justice during the reform process, as well as the policy preferences of France, Germany, the UK and civil society groups. It asks whether the EU institutions acted as supranational policy entrepreneurs or as agents of the member states in introducing the new social and environmental provisions, testing hypotheses derived from two competing theories of integration. It draws conclusions about the nature and causes of European integration in this field, and develops the concept of trusteeship in relation to the Court of Justice and European Parliament as a means of understanding democratic governance in the EU. Many debts were incurred in the course of researching this thesis. I would like to thank my interview subjects Malcolm Harbour, Marc Tarabella, Ronan O'Reilly, Panayotis Stamatopoulos and Olivier Moreau for providing first-hand insight into the gestation of the procurement directives and bringing their respective milieus to life. My research also benefitted from documents released under information requests facilitated by the AsktheEU and FragdenStaat websites, and I would like to thank the creators of these sites. Work on this thesis was undertaken over a period of five years amongst many other projects, and I am grateful for the patience and support of my clients, friends and family during this time. My greatest debts are to Dermot Hodson and Deborah Mabbett, my first and second thesis supervisors at the Birkbeck Politics Department. Deborah supported my research at an early stage and pointed me towards a rich literature on the social market economy which helped to situate my topic within broader political debates. Dermot guided me towards integration theory and provided valuable advice at each critical juncture as the project took shapefinding ways to help me sharpen my focus despite my sometimes stubborn desire to plough a particular barren furrow. Their help, and that of the other staff and students at the Politics Department is gratefully acknowledged. 1 Directive 2014/23/EU of the European Parliament and of the Council on the award of concession contracts (the Concessions Directive); Directive 2014/24/EU of the European Parliament and of the Council on public procurement and repealing Directive 2004/18/EC (the Public Sector Directive); and Directive 2014/25/EU on procurement by entities operating in the water, energy, transport and postal services sector and repealing Directive 2004/17/EC (the Utilities Directive). 2 The terms 'neofunctionalism' and 'intergovernmentalism' denote the two main strands of theory regarding EU integration. Chapter one distinguishes the more recent incarnations of these theories in supranationalism and new intergovernmentalism from the classic versions put forward by Haas and Hoffmann. 3 European Commission (2016) Public Procurement Indicators 2015. Only around a quarter of the €2 trillion figure is fully covered by the EU directives-many contracts fall below the relevant thresholds or are excluded for other reasons. 8 European Commission, COM (89) 400 final Public procurement: Regional and social aspects. In Case C-228/98 Nord-Pas-de-Calais the Commission challenged the use of award criteria targeting unemployment in the French region (see discussion in Chapter 4). The Commission also issued a reasoned opinion against Austria in 1997 concerning the application of environmental criteria in a contract for the purchase of lorries. 9 Case C-513/99 Concordia Bus Finland v Helsingin kaupunki and HKL-Bussiliikenne (Concordia) 10 These policies were set out in COM (2008) 400 Public procurement for a better environment 11 This more restrictive position is evident in the Commission's 2010 Buying Social guidance. 12 The four cases comprising the Laval quartet (discussed in Chapter 4): Case C-341/05, Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet et al (Laval); Case C-438/05 International Transport Workers' Federation, Finnish Seamen's Union v Viking Line ABP et al (Viking); Case C-319/06, Commission v Luxembourg; and Case C-346/06 Dirk Rüffert v Land Niedersachsen (Rüffert). 13 This term incorporates both green public procurement (GPP) and socially responsible public procurement (SRPP). The European Commission's support policy is primarily limited to GPP, as discussed in Chapter 3. 14 It is important to note that the decision about whether to outsource a service remains outside of the scope of EU law. However, where a decision is taken to award a contract or concession, the directives will apply if the value exceeds the relevant monetary threshold and if there is no exemption based on the subject-matter. 15 The first utilities sector directive, covering the water, energy, transport and telecommunications sectors, was adopted in 1992 (Directive 92/13/EEC). Directive 2004/17/EC added postal services to the scope of the utilities regime but removed telecommunications, on the grounds that this sector was subject to adequate competition. 16 For example, requirements relating to training and apprenticeships on local works contracts have aimed to combat unemployment and skills shortages in the UK, France and Germany amongst other jurisdictions. 17 For an overview of the response, see Bücker and Warneck (2010). 18 For discussion of the reasons for and nature of non-compliance see Gelderman, Ghijsen and Schoonen (2010) 19 These cases are unfortunately not grouped under a single classification in the Court's database. The figure of 500 is based on the author's own compilation of cases concerning procurement (including by EU institutions). 20 Court of Justice of the European Union, Annual Report for 2017 and previous years. 21 Case C-324/98 Telaustria Verlags GmbH and Telefonadress GmbH v Telekom Austria and Herold Business Data AG. The Court's approach in this case was foreshadowed to some extent in Case C-3/88 Commission v Italy ('Re: Data Processing Contracts') and was further developed in C-231/03 Consorzio Aziende Metano (Coname) v Cingia de' Botti and C-458/03 Parking Brixen GmbH v Gemeinde Brixen and Stadtwerke Brixen AG. 22 Case 8/74 Procureur du Roi v Dassonville. 23 Joined Cases C-267 and C-268/91 Keck and Mithouard [1993] ECR I-6097. 24 In the recent case C-486/17 Olympus Italia, the Court did hold that cross-border interest could not be merely hypothetical, with the burden of proof to establish this resting on the complainant. 25 Case T-258/06 Germany v Commission. See discussion in Chapter 4 of this case. 77 Moravscik (1999) describes informal agenda-setting as a process in which "the entrepreneur launches a discussion by highlighting problems, advancing workable proposals, underscoring potential material benefits, or linking the outcome to symbolic values" (p 272) 78 The remainder arise from international agreements; amendments to existing legislation; responses to specific requests from other Community institutions, member states or private actors; or from areas in which the Commission enjoys no discretion in exercising its right of initiative. 79 The Right2Water initiative, discussed in Chapter 5, was the first ECI to meet the Lisbon Treaty requirements. 129 This policy is set out in European Commission (2010b) 130 European Commission (2011a) 131 European Commission (2011d), at p 3 132 Ibid, pg. 4.
Social goals via public contracts in the EU: a new deal
The Public Procurement market (and public procurement law) is an interesting test field for the new horizons in sustainable and socially responsible public policies. The use of the public procurement market as a means for obtaining wider community benefits is quite common in the European and national frameworks: however, the most recent directives drafted in 2014 and their transposition into national law contain some significant new elements which impact directly on the balance of the interests at stake – mainly on market competitiveness and cost-efficiency-as well as more generally on the ways of guaranteeing and preserving this balance. The main novelty introduced by the new Public Procurement (PP) directives lies, undoubtedly, in the the key role that has been assigned to Buying Sustainable Approaches (BSAs) and the reliance that has been placed on public procurement procedures and contracts to achieve horizontal objectives. A broader European public contracts market (embracing social services and PPPs too), a wider range of horizontal objectives that can be incorporated into tender procedures (at any stage), the clear preference for BSAs linked to specific legal obligations and/or administrative provisions and the consequent key role assigned to Member States to regulate relevant goals, related obligations and MBAs, the provision of more flexible and adaptable procedures, a sticter interconnection between the different stages of the tender procedure, the significant role of past non performance: all these measures can be considered part of the new deal EU law aims to promote via public contracts. To the cost-effectiveness of the European integrated strategy and its contract-centered scenario, regulatory efforts aiming at both harmonizing BSAs legislative framework (starting from the setting out of goals and connected obligations) and tender documentation and contract design are success keys. This brings into play a wide set of legal instruments (including soft regulation ones) and a wide list of actors (other than States and their legislative branches). Only in such a synergic and multi-level horizon, the flexibility which has been boosted by the 2014 european directives on public procurement can sail in calm waters and ensure that key high impact social goals are achieved. «SUMMARY»: 1. Attaining social goals via public contracts: the (new) EU integrated approach-2. Social goals via public contracts in the EU: who sets the bar and strikes the balance?-3. Tailoring buying sustainable approaches (BSAs): an introduction-3.1. BSAs through participation requirements-3.2. BSAs through award criteria.-3.3. BSAs through contract performance conditions-4. Labour conditions in the EU public procurement market: an already fully harmonized sector?-5. Economic freedoms, worker protection and territorial constraints concerning the place of contract performance 6. Conclusions 1. The EU PP market is worth 16% of EU GDP 1. It offers, therefore, a great opportunity to achieve a vast list of horizontal objectives across the Eurozone 2 : from environmental protection and
The Evolution of European Community Law on Public Procurement between 2006 and 2008
European Review of Contract Law, 2008
The report describes the most recent evolution of European Community Law concerning the award of public contracts. It is mainly focused on case-law and provides an overview of the latest judgements of the ECJ. Topics dealt with in particular are the definition of contracting authorities, of public contracts and concessions; some aspects of the award procedures, award criteria, contract renewals and review procedures. Moreover, the recent Directives (mainly Directive 2007/66) are briefly presented. A final section deals with public procurement in the field of defence.
Nordic Journal of European Law , 2020
The early interest that EU law has demonstrated for public procurement contracts has gradually been molded into a sector-specific paradigm of European administrative law. Despite the constant movement of the sector counting already four generations of substantive and two generations of procedural EU law, its qualification as administrative law provides some pillars of stability; as an expression of a sui generis principle of legality, the award of public contracts is organized via formalistic, yet sometimes rigid and time-consuming procedures, due process emerging as a common principle among national and supranational administrative systems. Even though due process constitutes the gateway to accountability, the aim of the paper is limited to underlining the indicators of administrative procedure in the award of public contracts.