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An internationally oriented interpretation of EU law on public procurement: strengthening labour clauses through ILO Convention no. 94

WP C.S.D.L.E. “Massimo D’Antona”.INT – 153/2020

This essay has been anonymously peer-reviewed by a referee selected by the editors. Submitted: 2020-04-07; Accepted: 2020-04-28; Published: 2020-05-05

A reduced version of this essay has been presented at the “6th Conference of the Regulating for Decent Work Network”, at the International Labour Office Geneva, Switzerland, 8-10 July 2019

The essay is the outcome of a joint research of the two authors. However, Giulia Frosecchi is the author of Sections 1, 5 and 6 and Giovanni Orlandini of Sections 2, 3 and 4. Section 7 has been written jointly by the two authors

Copyright 2019 by author(s). All rights reserved. Readers may make verbatim copies of this document for non-commercial purposes by any means, provided that this copyright notice appears on all such copies.

The paper explores the issue of working conditions and labour clauses in public procurement. It provides an analysis of the content of ILO Convention no. 94, as interpreted by the CEACR, as well as of the relevant EU legal framework, in order to clarify if and to what extent the obligations under international labour law differ from those set by the EU norms that protect competition and economic freedoms. The EU legal framework is extremely complex and not free from uncertainties, fuelled by a controversial case law of the Court of Justice, which has addressed, several times, the compatibility of labour clauses with the freedom to provide services. Moreover, both Directive 2014/24 and Directive 96/71 ignore ILO Convention no. 94. Consequently, an evident problem arises, especially for those States that do not provide for generally binding collective agreements, and, hence, may easily incur in violations of the internal market principles.

The aim of the paper is to provide an interpretation of the founding principles of the internal market integration harmonious with the applicable international labour standards, implemented by numerous national laws. The solution is to be found in the proper application of Article 351 TFEU, which may prevent the risk of denouncing ILO Convention no. 94. In order to avoid an irreparable conflict between EU law and ILO sources, the authors try to avoid a shallow interpretation of the standards set by the latter. They rather opt for resolving ambiguities and uncertainties of the CJEU’s case law in a way that promotes the maximum employment standards in public procurement, precisely by promoting the ILO norms, as sources that concur to define the EU general principles on labour.

author(s): Frosecchi, Giulia; Orlandini, Giovanni
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