Regulatory substitution between labour and public procurement law: The EU’s shifting approach to enforcing labour standards in public contracts

Abstract:

In this article, I reflect on 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 hypothesize 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 policy-oriented 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 galvanized 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.