Over the years, European public procurement has moved away from its initial focus on value for money, open access and anti-corruption and started introducing more “social” aims and objectives into the picture. Because of this, EU law on whether it is permissible to impose social conditions – like creation of local or regional employment, or the enforcement of labour standards, such as ‘living’ or ‘minimum’ wage – on contractors performing public contracts, has been an increasing area of controversy in the courts for some time. In fact, over the past 10 years the Court of Justice of the European Union has seen landmark cases (from Laval un Partneri in 2007 and Rüffert in 2008, to the more recent RegioPost in 2015) raising the potential of significant transformation in this area of EU law.
In the case of RegioPost, the CJEU has set new parameters in imposing special conditions on public sector contractors, and now consideration is being given to just how far-reaching those implications might be in terms of how far public authorities in other EU member states will apply these conditions and how UK companies tendering for public contracts across the EU might be affected. So it is a good time for the debate to be reopened on just how influential these recent decisions have been on the revision of EU public procurement law of 2014.
We have also seen different approaches developing even within the (not very) “United” Kingdom, with the Scottish government for instance introducing guidance that suggests contracting authorities should be assessing whether bidders are “good employers”. That proposes a number of indicators, some of which are (in our opinion) somewhat dubious, and goes well beyond more generally accepted social aims such as encouraging apprenticeships or getting the long-term unemployed back into work.
The University of Bristol Law School has dedicated May 9th as a day of debate on the subject – reassessing the scope and limits for the enforcement of labour standards in the public procurement — and has invited a panel of many senior-level academics to take part in the discussion, including Professors Michael Ford QC, Tonia Novitz, Drs. Albert Sanchez-Graells, Phil Syrpis and Senior Lecturer Ms. Nina Boeger.
The day aims to produce thinking around and answers to questions such as:
- How does the revised approach to the enforcement of labour standards in public procurement fit within the EU constitutional and internal market framework?
- What are the limits of the enforcement of labour standards under the new EU public procurement rules and, in particular, under Act 70 of Directive 2014/24? How do the CJEU Judgements in Bundesdruckerei and RegioPost affect the interpretation of the provision?
- What are the implications of these developments in the broader context of EU labour law? How does this relate to the implementation of the Posted Workers Enforcement Directive?
- What are the implications of these developments in the specific context of UK law? How can they impact on the interpretation and effectiveness of the Social Value Act 2012? How do they affect the design of procurements covered by the Public Contracts Regulations 2015?
It promises to be a very interesting debate and we look forward to the outcome, when we will have a first-hand account of outcomes from Dr Sanchez-Graells. The debate is to take place at University of Bristol Law School – Coutts Lecture Theatre, Wills Memorial Building Queen’s Road, Bristol BS8 1RJ, from 9.00am to 5.00pm on May 9th and registration is free. So do visit Public Procurement & Labour Standards–Reopening the Debate after RegioPost for more information or if you would like to attend.