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Ramon Vives, Setem-Catalunya Ignasi Manrubia, Universitat Pompeu Fabra

Analysis of the European Commission guide “Buying social: A Guide to taking account of social considerations in public procurement”. Ramon Vives, Setem-Catalunya Ignasi Manrubia, Universitat Pompeu Fabra. Introduction. What’s Public Procurement

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Ramon Vives, Setem-Catalunya Ignasi Manrubia, Universitat Pompeu Fabra

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  1. Analysis of the European Commission guide “Buying social: A Guide to taking account of social considerations in public procurement” Ramon Vives, Setem-Catalunya Ignasi Manrubia, Universitat Pompeu Fabra

  2. Introduction • What’s Public Procurement • Regulatory framework and the principles governing the Public Procurement in Europe • Treaty establishing the European Community • EU public procurement fundamental principles • Public procurement directives • National legislation

  3. 1. Treaty establishing the European Community • Primary aim is economical: integration of the EU market • Integration of sustainability objectives into all EU policies and activities (art. 6 of the Treaty)

  4. 2. EU public procurement fundamental principles • Principle of freedom of movement of goods • Principle of freedom to provide services • And principles deriving therefrom, such as • Equal treatment • Non discrimination • Mutual reconigtion • Proportionality • Transparency • Competition • Commission interpretative communication on the Community law applicable to contract awards not or not fully subject to the provisions of the Public Procurement Directives(2006/C 179/02)

  5. 3. Public procurement directives • Directive 2004/18/EC • Directive 2004/17/EC • Applicability: Thresholds • Not intended to restrict the subject matter but to ensure that principles are fully complied

  6. The role of sustainable criteria as cross-cutting or horizontal policies in procurement • New approach in public procurement: Beyond funtional objectives • The 3 pillars of sustainable development • From enviromental to social • Societal objectives as horizontal policies: • Consistency with the integration principle (TEC) • Consistency with the ECJ’s jurisprudence • The potential benefits of SRPP

  7. Labour clauses in a context of globalisation • Labour rights respect in global supply chains • ILO conventions as a legal framework

  8. European institutions approach to socially sustainable procurement • European Parliament communications: • 6 july 2006 (2005/2245(INI)) • 18 may 2010 (2009/2175(INI)) • Opinion of the European Economic and Social Commitee of 20 jan 2010 (REX/288-CESE 108/2010) • Opinion of the Commitee of the Regions of 10 feb 2010 (CdR 214/2009) • Evolution of the ECJ case law: • Matter in constant evolution • ECJ is independent: Often shows a more progressive approach

  9. European institutions approach to socially sustainable procurement • 4 major cases: • Case C-31/87, Gebroeders Beentjes, 20 September 1988 • Case C-225/98, Pas de Calais, 26 September 2000 • Case C-513/99, Concordia Bus Finland, 17 December 2002 • Case C-448/01, EVN AG & Wienstrom, 4 December 2003

  10. The European Commission restrictive position • COM(2001)566 Final Interpretative Communication of the Commissionon the Community law applicable to public procurement and the possibilities for integrating social considerations into public procurement • Communication from the Commission of the European Communities of 5 may 2009: Contributing to sustainable development: the role of fair trade and non governmental trade related sustainability assurance schemes. COM(2009) 215 final. • The Commission refers social matters to the European Court of Justice. • The Buying Social Guide draft.

  11. Buying Social: a guide to taking account of social considerations in public procurement • This guide is a Staff Working Paper, a document of basic or low range. • Indicative document • Subject to the evolution of Commission practice and the case-law of the European Court of Justice. • Published by DG-Markt • Takes a negative perception of sustainable development issues and does not encourage, but the opposite.

  12. Buying Social: a guide to taking account of social considerations in public procurement “Labour conditions of the workers involved in the execution of the contract are not technical specifications or selection criteria within the meaning of the procurement directives. In addition, given that such social considerations are difficult to link to the subject matterof the contract, it will be generally not possible to include them in the award criteria of the contract (except as an additional criterion to make the difference between to equal tenders, as accepted by the ECJ in case C-225/98)”

  13. Buying Social: a guide to taking account of social considerations in public procurement “Requirements relating to the labour conditions of the workers involved in the production process of the supplies to be procured cannot be taken into account in the technical specifications, as they are not technical specifications within the meaning of the procurement directives. They may however, under certain conditions, be included in the contract preformance clauses.”

  14. Our Buying Social SWOT analysis • Strenghts: • Explicit recognition of promoting ‘decent work’ as a relevant social consideration to be taken into account in public procurement. • Explicit recognition of the ‘supply chain management’ problems regarding health&safety requirements, minimum wage obligations, social security requirements, and decent work standards. • Explicit recognition of requirements on sub-contractors concerning compliance with prohibitions on child and forced labour where these problems occur. • Explicit recognition of the particular implications of these issues for dealings in and with third countries outside the EU. • Explicit recognition that when such requirements are put on sub-contractors, contracting authorities should ask the main contractor evidence of compliance provided by reliable means of proof.

  15. Our Buying Social SWOT analysis • Weaknesses: • Published by DG-Markt and not DG-Social. • Restrictive and not encouraging position of the Commission. • Language and tone: More examples of what is allowed needed, instead of negative examples of what is forbidden. • Too vague to be helpful. • Requirements relating to the labour conditions of the workers cannot be taken into account in the technical specifications. • No reference to a multistakeholder approach at all.

  16. Our Buying Social SWOT analysis • Opportunities: • Growing interest from society and Public Administrations. • This issue is in constant evolution. • More sensivity to corporate transparency and CSR policies in the Commission. • The present comissar, Mr. Barnier, despite being conservative is more sensitive and 'social' than the one before. • The guide should be seen as the first step in developing the issue of social procurement, rather than an end in itself. • New revision process of the 2004 directives at medium term. • Publication of new SPP guides from european NGOs.

  17. Our Buying Social SWOT analysis • Threats: • The opinion of the Commission is imposed to other more opened entities of the European Union. • Public administrations incorporate the restrictive and negative vision of this guide.

  18. TO BE CONTINUED… Ramon Vives & Ignasi Manrubia SETEM Catalunya www.setem.org rvives@setem.org ignasi.manrubia@upf.edu

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