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18/01/2014

La finalizzazione sociale degli appalti pubblici. Le “clausole sociali” fra tutela del lavoro e tutela della concorrenza *

WP C.S.D.L.E. “Massimo D’Antona”.IT – 196/2014



This essay has been anonymously peer-reviewed by a referee selected by the editors. Submitted: 2013-11-10; accepted: 2014-01-08; published: 2014-01-18.




The recent proposals for directive of the European Parliament and of the Council on the public procurements and on the award of concession contracts - COM(2011) 895 final; COM (2011) 896 final; COM (2011) 897 final - are oriented to promote social objectives, such as support for fair labour conditions, protection and increase of employment rates, provision of labour opportunities for disadvantaged groups. These proposals for directive recall and strengthen the prospective of Directives nn. 2004/17/UE and 2004/18/UE, where European legislator has clearly pointed public procurements can be (also) used as a policy tool.

Italian regulation in force on public procurement, which transposes Directive nn. 2004/17/UE and 2004/18/UE into national law, pursued social goals by the so called “social clauses”, which can be included not only in the law, but also in collective agreements or in the lex specialis of the procedure.

This article studies the legitimacy of social clauses, regarding economic freedom: peculiarly, the legitimacy of the clauses for minimum wages, of the clauses for protection of employment rates and of the clauses which save public procurement to social cooperatives, is doubtful regarding the freedom to provide services, guaranteed by Art. 56 Tfeu, and the principle of an open market economy with free competition, considered by Art. 119 Tfeu. In fact, social clauses like these, in the past, have been declared by the ECJ illegitimate in opposition to the economic freedom (Case n. C-346/2006, Dirk Rüffert; Case n. 460/02, Commission of the European Communities vs. Italian Republic; Case n. C-386/2003, Commission of the European Communities, vs. German Republic). Then, principle of fair and open competition and freedom to provide services, as explained by the ECJ, could represent an obstacle to achieve the social objectives pursued by the proposals for directive on the public procurements and on the award of concession contracts.


author(s): Costantini, Stefano
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