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 Ruffert 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.
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.
1. Introduction Albert Sanchez-Graells 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 3. Article 56 TFEU and the Principle of Proportionality: Why, When and How Should They be Applied After RegioPost? Piotr Bogdanowicz 4. Upholding General Principles versus Distinguishing Cases: On the Use of Precedent in EU Public Procurement Law (A Case Study) Roberto Caranta 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 6. Competition and State Aid Implications of `Public' Minimum Wage Clauses in EU Public Procurement after RegioPost Albert Sanchez-Graells 7. Public Procurement and Business for Value: Looking for Alignment in Law and Practice Nina Boeger 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 9. Government as a Socially Responsible Market Actor After RegioPost ACL Davies 10. Fair's Fair: Public Procurement, Posting and Pay Catherine Barnard 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 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 13. A View from Outside the EU: UNCITRAL's Approach to Balancing Economic and Social Considerations in Public Procurement Caroline Nicholas