Regulatory Substitution between Labour and Public Procurement Law: The EU's Shifting Approach to Enforcing Labour Standards in Public Contracts

Abstract

In this paper, I reflect about a recent regulatory trend concerning the enforcement of labour standards through contract compliance clauses and other requirements of public contracts tendered under European Union public procurement law. On the back of recent developments in the case law of the European Court of Justice regarding cross-border situations of procurement-based enforcement of labour standards, notably in the re-examination of the Rüffert case in both the Bundesdruckerei and RegioPost cases, I reflect on this phenomenon from the perspective of regulatory substitution. In setting out a basic framework to assess regulatory substitution, I hypothesise that most of the difficulties evidenced by the case law stem from the transfer of labour regulation goals to the public procurement sphere. I then aim to test this hypothesis by means of an analysis of labour policyoriented mechanisms included in the 2014 revision of the EU public procurement rules. I then go on to critically assess the fitness for purpose of the procurement mechanisms from the perspective of contributing to the enforcement of labour standards. I ultimately conclude that, even though the 2014 Public Procurement Package has galvanised the trend of regulatory substitution whereby employment and social goals have now become part and parcel of public procurement strategy in the EU, a close examination of the legal mechanisms created by Directive 2014/24/EU shows that this regulatory substitution is both limited and highly dependent on the implementation (and investment of significant administrative resources) at Member State level.

Moving In and Out of the Shadow of European Case Law: the Dynamics of Public Procurement in the Post‐Post‐Rüffert Era

“…But unlike in other jurisdictions, many of which have public procurement tribunals, only the High Court has that authority in the UK and the cost of issuing a claim there can often prove prohibitive for suppliers (Arrowsmith and Craven, ). This has resulted in relatively limited litigation in procurement cases and a greater reliance instead on out‐of‐court settlements, meaning that domestic case law offers a limited source of interpretative guidance (Sanchez‐Graells, ). Furthermore, the limited deployment of posted workers into the UK for public contracts outside London has arguably reduced the chances of legal challenges arising from labour clauses after Rüffert .…”

Managing dissonance: Bureaucratic justice and public procurement

“…The discussion below relates to the competitive procedures (reg.26, Public Contracts Regulations 2015), which formally commence when the authority has a contract advert (notice) published. The procedures can be broken up into stages, and, at different points, labor objectives may feature in different ways (see Arrowsmith 2018, chapter 20; Barnard 2016; Sánchez‐Graells 2018a). The section below considers three key points – qualification, the contract, and award.…”

“…Market-based criticisms and justifications are pronounced in current political and policy debates around lowest price tendering and the role of outsourcing firms in public service delivery (the likes of Serco, G4S, and Capita), the so-called "supermarketization" of public services (Parliament Hansard 2010). In the market worth (the right-hand column in Table 4), justifications center upon economic efficiency (Yukins 2010;S anchez-Graells 2015), which represents the basis upon which to assess the validity and relative importance of competing arguments (such as the regulatory arguments put forward by Arrowsmith, above). Thus, for example, to be accepted as legitimate in the market worth, arguments for fair treatment rules, which naturally one might associate with the civic worth, would need to be justified in economic termsthese enhance competition in the longerterm because procurement processes are more attractive for bidding firms.…”

Legal Regulation of Socially Responsible Public Procurement: Impact of Sustainable Development Goals

“…Застосування «зовнішніх» вимог у закупівлях часто дискутують у науковій літературі [18]. Деякі автори вказують на розмивання меж пов'язаності з предметом закупівлі.…”