10.6092/issn.1561-8048/12429
Public procurements represent a strategic solution to deliver “collateral” effects on the environment and social protection fields. As a reaction to the pro-market decisions of the Court of Justice, European Institutions demanded the revision of the 2004 Directives, in order to enhance the social use of procurements. The 2014 Directive embodies a remarkable shift in this direction. The new Directive nonetheless does not seem to sort out all issues regarding the application of social clauses especially those prescribing minimum pay rates
application/pdf
1561-8048
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Davide Tardivo
https://creativecommons.org/licenses/by/4.0
Italian Labour Law e-Journal
Social clauses
The ambiguous role of social clauses in European directive 2014/24
Text.Serial.Journal
https://illej.unibo.it/
14
Miscellaneous
2021-07-29
2021-02-18
2021-07-29
2021-07-29
275-297
ILLeJ
Davide Tardivo
2021/07/29
10.6092/issn.1561-8048/12429
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Università degli Studi di Padova
1561-8048
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Social clauses
en
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The ambiguous role of social clauses in European directive 2014/24
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The ambiguous role of social clauses in European directive 2014/24                          Italian Labour Law e-Journal
Davide Tardivo                                                                                     Issue 1, Vol. 14 (2021)
davide.tardivo@unipd.it                                                                                  ISSN 1561-8048
                                                                          https://doi.org/10.6092/issn.1561-8048/12429




       The ambiguous role of social clauses in European
                     directive 2014/24
                                               Davide Tardivo



 1. Public procurement and social purposes: chronicles of an historic connection. 2. Social
 clauses in EU legislation: from the early debate to the Directive 2004/18. 3. The ECJ limits
 to social clauses: from Rüffert to Regio Post. – 3.1. The Rüffert case. 3.2. The
 Bundesdruckerei case. 3.3. The RegioPost case. – 3.4. Notion and limits of social clauses in
 ECJ interpretation. 4. Social Clauses in 2014 Directives: a new impulse towards social
 purposes? 4.1. Article 18 par. 2. 4.2. Article 70. 4.3. Directive 2014/24 as “social” turning
 point in procurement legislation? 5. Toward a “social” future for the EU?

                                                        Abstract

     Public procurements represent a strategic solution to deliver “collateral” effects on the
     environment and social protection fields. As a reaction to the pro-market decisions of the Court
     of Justice, European Institutions demanded the revision of the 2004 Directives, in order to
     enhance the social use of procurements. The 2014 Directive embodies a remarkable shift in this
     direction. The new Directive nonetheless does not seem to sort out all issues regarding the
     application of social clauses especially those prescribing minimum pay rates.

     Keywords: Public procurement; labour standards; social clause; Directive 2014/24/EU;
     Directive 96/71/EC




 1. Public procurement and social purposes: chronicles of an historic connection.

    The instrumental use of public procurements to deliver “horizontal” policies is a strategy
 that EU institutions and member states have adopted since a long time.1 In the last three


 
   PhD in Labour Law at Padova University. This article has been submitted to a double-blind peer review
 process.
 1 Arrowsmith S., Horizontal policies in public procurement: a taxonomy, in Journal of public procurement, vol. 10, 2010, 150

 highlighting multiple definitions of such trend: “secondary policies” (see also Arrowsmith S., The Law of Public and
 Utilities Procurement, Sweet & Maxwell, London, 2005); “collateral policies” (Cibinic J., Ralph C., Nash J., Yukins C.
 R., Formation of Government Contracts, Wolters Kluwer, Washington DC, 2011) and “socio-economic policies” or
 “horizontal policies”. See also Arrowsmith S., Kunzlik P. (edited), Social and Environmental Policies in EC procurement
 Law: New Directives and New Directions, Cambridge University Press, Cambridge, 2009.
    Davide Tardivo                                                                            Italian Labour Law e-Journal
                                                                                                     Issue 1, Vol. 14 (2021)
                                                                                                     Section: Miscellaneous




decades, European procurements regulation has been addressed by the growing interest for
possible “social” outcomes of its application.2 A clear evidence of this trend are the guidelines
of the European strategy on public procurements, where public contracts are conceived as
legal tools to accomplish works or provide services (the “primary objective” of the contract),
but also to pursue a disparate set of “secondary objectives” as well. Among the latter, the
EU Commission expressly names environmental protection, sustainable development,
innovation and digitalization (the so-called “e-procurement”), corruption contrast, creation
of employment opportunities and decent work, social inclusion, accessibility and ethical
trade.3
    At first sight, the last European Directive no. 24 of 2014 seems to make a step further to
this direction.4 This conclusion is grounded on the one hand, on multiple references to social
aspects the Directive contains both in recitals and in the body.5 On the other hand, on two
provisions, namely article 18 par. 2 and article 70. They seem to provide for a renewed legal
basis for social clauses and for new parameters to appreciate their compatibility with EU law.
Directive no. 24 of 2014 has been interpreted therefore as a considerable change of approach
in the EU public procurement regulation, which was previously characterized by the principle
established in the so-called Laval quartet, and notably in Rüffert6: the primacy of economic
freedoms over social rights.
    This paper wants to investigate whether this interpretation is plausible especially
considering that the analysis of multiple legal sources governing this matter, combined with
the interpretation provided by the European Court of Justice, seems to offer a legal
framework still characterized by the previous approach more favorable to the economic
freedoms. As will be clarified below7, without doubt this Directive represents a valuable


2 McCrudden C., Buying social justice. Equality, Government, Procurement, and Legal Change, Oxford University Press,
Oxford, 2007; Barnard C., Using Procurement Law to Enforce Labour Standards, in Davidov G., Langille B. (ed.), The
Idea of labour law, Oxford University Press, Oxford, 2013, 256.
3 European Commission, “Buying Social - A Guide to Taking Account of Social Considerations in Public Procurement”,

2010, available at www.ec.europa.eu/growth/single-market/public-procurement/strateg y. More recently European
Commission, Communication 2017/572 “Making Public Procurement work in and for Europe” (available at
www.ec.europa.eu/docsroom/documents/25612); see also the project “Buying for Social Impact (BSI)” carried out from
July 2018 to January 2020 and commissioned by the Executive Agency for Small and Medium-sized Enterprises
(EASME) and the European Commission Directorate-General for Internal Market, Industry, Entrepreneurship
and SMEs (DG GROW). One of the main objectives of this project which involved 15 member States (Italy
included) was “to encourage contracting authorities to use public procurement to pursue social goals”, publishing examples of
the best practices detected in member states (https://op.europa.eu/en/publication-detail/-/publication/3498035f-
5137-11ea-aece-01aa75ed71a1); at supranational level United Nations, “The 2030 Agenda for Sustainable
Development” spec. point 12.7 (available at www.sustainabledevelopment.un.org).
4    See the European Parliament press release of 15 January 2015 (available at
http://www.europarl.europa.eu/news/en/press-room). See also European Trade Unions Confederation (ETUC), New
EU framework on public procurement, ETUC key points for the transposition of directive 2014/24/EU (available at
www.etuc.org). Barnard C., To Boldly Go: Social Clauses in Public Procurement, in Industrial Law Journal, July 2017, 242:
“the Directive provides the green light for social creativity in procurement and a strong indication that the EU
– and the European Commission in particular – far from being a threat will in fact supportive or targeted social
initiatives”.
5 Barnard C., nt. (4), 210, points out the Directive no. 2014/24 contains about 40 references to the word “social”

(excluding the Annexes and the words “Economic and Social Committee”, “social security”, “social services”),
while in the previous Directive no. 2004/18 the references were about 4.
6 ECJ, C-346/06, 3 April 2008, Dirk Rüffert v. Land Niedersachsen.
7 See par. 3.



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starting point towards a new balance between social rights and economic freedoms in EU
law, but to ensure more than a formal balance between them, EU legislation requires further
interventions.
   Before defining the real extent of changes embedded in the Directive no. 24 of 2014, it is
important to analyze their premise: the development of the idea of using public procurements
as a policy tool to pursue “secondary objectives”. Of course, this approach is not new. First
samples arose approximately at the end of 19th century both in United States and Europe
(above all United Kingdom and France), where Governments used public procurements to
sustain the industrialization process.8 Over the years, public policies changed their collateral
aims, which can be summarized in two main categories.9 First, “economic objectives”: public
procurements aim to increase investments in internal market without the intervention of
foreign investors, to develop strategic sectors’ or to support specific economic districts.
Second, “political objectives”: public procurements pursue an open list of “social” aims, which
in recent years are focused especially on “third generation” interests (sustainable
development and environmental protection).10 Nevertheless, among “political objectives”
great attention has always been dedicated to labour standards, especially to fair wage for
workers hired by contracting companies.
   Across the years, the balance between political and economic objectives changed many
times for different reasons. Economic objectives were prevalent during the first half of ‘900,
when, before the advent of the competition law at supranational level, Governments enacted
strong “buy national” policies, more favorable to domestic companies and characterized by
sharp discriminations against foreign contractors.11 Then, the strengthening of labour rights
and the ratification of international conventions (such as ILO Convention no. 94 of 1949)
pushed national Governments to take into more serious account social objectives. Among
them, fair wage for employees hired by contractors received particular attention as well as
one of the main tools to ensure it: social clauses.12

8 For an overview Barnard C., To Boldly Go: Social Clauses in Public Procurement, nt. (4), 211; Bercusson B., European
Labour Law, Cambridge University Press, 2009, 429, footnote 41; Arrowsmith, The law of Public and Utilities
Procurement, Sweet and Maxwell, 2005, vol. II, 1226; S. Arrowsmith S., Linarelli J., Wallace D., Regulating Public
Procurement: national and international Perspectives, Kluwer Law International, Alphen aan den Rijn, 2000, 237-310;
McCrudden C., Using public procurement to achieve social outcomes, in Natural Resources Forum 28, 2004, 257-267.
9 Similarly see Trepte P., Regulation Procurement: Understanding the Ends and Means of Public Procurement Regulation,

Oxford University Press, Oxford, 2004, 8.
10 See the study carried out by the Directorate General for Internal Policies, Green Public Procurement and the EU

Action Plan for the Circular Economy, June 2017 (available at www.europarl.europa.eu).
11 For an overview see Arrowsmith S., The law of Public and Utilities Procurement, nt. (8), 1226. An example in

United States is the “Buy American Act” of 1933.
12 Izzi, Lavoro negli appalti e dumping, Giappichelli, Torino, 2020; Pantano F., Le clausole sociali nell’ordinamento

giuridico italiano. Concorrenza e tutela del lavoro negli appalti, Pacini, Pisa, 2020; Izzi D., Lavoro negli appalti e dumping
salariale, Giappichelli, Torino, 2020; Tullini P., Concorrenza ed equità nel mercato europeo: una scommessa difficile (ma
necessaria) per il diritto del lavoro, in Rivista Italiana di Diritto del Lavoro, I, 199; Giubboni S., Libertà economiche
fondamentali, circolazione dei servizi e diritto del lavoro, in Mezzanotte F. (ed.), Le “libertà fondamentali” dell’Unione Europea
e il Diritto privato, RomaTrE-Press, Roma, 2016, 181; Arrowsmith S., Rethinking the Approach to Economic
Justifications under the EU’s Free Movement Rules, in Current Legal Problems, 2015, 307; Cremers J., Wixforth S., Social
considerations in public procurement: A political choice, Werner Buelen, EFBWW, 2015; Forlivesi M., Le clausole sociali
negli appalti pubblici: il bilanciamento possibile tra tutela del lavoro e regioni del mercato, in WP C.S.D.L.E. “Massimo
D’Antona”.IT-275/2015; Costantini S., La finalizzazione sociale degli appalti pubblici. Le “clausole sociali” fra tutela del
lavoro e tutela della concorrenza, in WP C.S.D.L.E. “Massimo D’Antona”.IT-196/2014; Orlandini G., Mercato unico
dei servizi e tutela del lavoro, F. Angeli, Milano, 2013; Brino V., Diritto del lavoro, concorrenza e mercato. Le prospettive

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  Davide Tardivo                                                                                     Italian Labour Law e-Journal
                                                                                                            Issue 1, Vol. 14 (2021)
                                                                                                            Section: Miscellaneous




   Well known in national laws since the beginning of the past century13, the use of this kind
of social clause (“pay clause”) did not encounter oppositions before the advent of European
legislation. Considering the lack of supranational rules protecting competition, at least two
member state’s constitutional courts admitted the compatibility with national constitutions
of pay clauses in public procurements. The common argument was that the protection
granted against wage dumping was considered as “matter of public interest”, and for this
reason it could be balanced with other interests like private enterprises’ economic freedom,
the good functioning and the impartiality of public administrations, exc..14
   The real turning point for pay clauses’ admissibility came with the advent of the European
legislation, which substantially overturned the approach supported by national laws and
courts. Europe started its integration as an economic process and this required the
coordination of awarding procedures in public procurements, in order to avoid
discriminations and guarantee fair competition.15 In this period social aspects (included the
use of social clauses) were completely ignored at EU level because social policies were



dell’Unione Europea, Cedam, Padova, 2012; De Mozzi B., La tutela dei lavoratori nell’appalto transnazionale, in Carinci
M.T., Cester C., Mattarolo M.G., Scarpelli F. (eds.), Tutela e sicurezza del lavoro negli appalti privati e pubblici.
Inquadramento giuridico ed effettività, Utet, Torino, 2011, 29; Kilpatrick C., Internal market architecture and the
accomodation of labour rights: as good as in gets?, in EUI Working Papers Law 2011/04; Bücker A., Warneck W. (eds.),
Reconciling fundamental social rights and economic freedoms after Viking, Laval and Rüffert, Nomos, Baden-Baden, 2011;
Varva S., Le clausole sociali, in Carinci M.T., Cester C., Mattarolo M.G., Scarpelli F. (eds.), Tutela e sicurezza del
lavoro negli appalti privati e pubblici. Inquadramento giuridico ed effettività, Utet, Torino, 2011, 321; Scarpelli F., La
dimensione sociale nella regolamentazione degli appalti pubblici, in Carinci M.T., Cester C., Mattarolo M.G., Scarpelli F.,
(eds.), Tutela e sicurezza del lavoro negli appalti privati e pubblici. Inquadramento giuridico ed effettività, cit., 307; Kilpatrick
C., British jobs for British workers? UK industrial action and free movement of services, in LSE Law, Society and Economy
Working Paper, 16/2009; Sciarra S., Viking e Laval: diritti collettivi e mercato nel recente dibattito europeo, in Lavoro e
Diritto, 2008, 245; Lo Faro A., Diritti sociali e libertà economiche del mercato interno: considerazioni minime in margine ai
casi Viking e Laval, in Lavoro e diritto, 2008, I, 63; Ballestrero M.V., Le sentenze Viking e Laval: la Corte di giustizia
“bilancia” il diritto di sciopero, in Lavoro e Diritto, 2008, II, 371; Dorssemont F., Jaspers T., Van Hoek A. (eds.),
Cross-border collective actions in Europe: a legal challenge, Intersentia, Cambridge, 2007; Scarpelli F., Regolarità del lavoro
e regole della concorrenza: il caso degli appalti pubblici, in Rivista Giuridica del Lavoro, 2006, III, 762; Ghera E., Le c.d.
clausole sociali: evoluzione di un modello di politica legislativa, in Diritto delle Relazioni Industriali, 2001, 133.
13 In United Kingdom policies concerning labour rights are enacted in 1891 in the House of Commons “Fair

Wages Resolution” (see Arrowsmith S., The law of Public and Utilities Procurement, nt. (8), 1240). In 1907, the
German Imperial Statistical Office reported dozens of regional and municipal procurement regulations with
references to the pay and working conditions of workers involved in public contracts, Kaiserliches Statistisches
Amt, Die Regelung des Arbeitsverhältnisses bei Vergebung öffentlicher Arbeiten, Beiträge zur Arbeiterstatistik
no. 6, Carl Heymanns Verlag, 1907). In 1931 the American “Davis Bacon Act” required contractors to pay local
prevailing wage rates when the United States or District of Columbia were the contractors.
14 The Italian Constitutional Court in judgment 19 June 1998, no. 226 stated that social clauses answer to a

double aim. On the one hand, to ensure “a minimum standard of protection for the workers involved in procurements”; on
the other, to guarantee “a better realization of the public interest, pursued, according to the principles of fair competition between
entrepreneurs, functional to obtain for the public administration the most favorable conditions”. The Court underlined that
the good functioning of public administrations can derive by the respect of collective agreements because "even
the costs for companies, deriving from the obligation of fair treatment, contribute to the better identification of the best bidder”
(author’s translation). The Court confirmed its opinion in judgment 3 March 2011, no. 68. Accordingly, the
German Federal Constitutional Court Bundesverfassungsgericht, Beschluss vom 1, July 2006, 1 BvL 4/00, spec.
recital 90.
15 Sànchez Graells A., Public Procurements and the EU Competition Rules, Oxford, Oxford, 2011; Ludlow A., The

Public Procurement Rules in Action: An Empirical Exploration of Social Impact and Ideology, in Cambridge Yearbook of
European Legal Studies, XVI, 2014; Joerges C., Rödl F., “Social Market Economy” as Europe’s Social Model?, EUI
Working Paper No. 2004/8, 5.

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     Davide Tardivo                                                                         Italian Labour Law e-Journal
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                                                                                                   Section: Miscellaneous




considered a matter reserved to member states.16 Nevertheless, when it became clear that the
use of social clauses could affect the good functioning of the common market in favor of
domestic bidders, the EU legislation started to require the compliance of social clauses with
the economic freedoms.17


2. Social clauses in EU legislation: from the early debate to the Directive 2004/18.

    The evolution of European public procurement legislation began with the EC founding
Treaty, which contemplated public contracts in article 16318. Already at that time, the volume
of public resources involved made clear that the economic impact of public procurements
could easily influence the primary aims of the European Community (listed in articles 319,
and 420 of the Treaty). Articles 43 and 49 EC of the founding Treaty21, which prohibited
discriminations based on nationality, completed the original European legal framework on
EU public procurement.
    Because of their vagueness, these principles were not able to eradicate the strong influence
of previous “buy national policies” and did not open national markets up to foreign
contractors. As consequence, it became necessary to introduce a specific regulation: the
Directive no. 305 of 1971.22 The provision of a general rule based on non-discriminatory
awarding criteria tried to remove trade barriers and ensure the good functioning of the single
market.23 The following Directives in 1990s pursued the same goal24 focused on competition,
while no references were reserved to social purposes25. For this reason, the attitude of public
procurements to protect social rights began to be considered only when the compatibility of
national social clauses came before the European Court of Justice. In “Gebroeders Beentjes B.V.
v. the Netherlands”26, the Court recognized to contracting authorities the possibility to pursue

16 See Joerges C., Rodl E, Informal Politics, Formalised Law and the "Social Deficit" of European Integration: Reflections
after the Judgments of the ECJ in Viking and Laval, in European Law Journal, 2009, 15, 3-4. See also Giubboni S.,
Social rights and market freedom in the European constitution: a Labour law perspective, Cambridge University Press,
Cambridge, 2006, 41-42. Barnard C., EU Employment Law and the European Social Model: The Past, the Present and
the Future, Current Legal Problems, no. 67, 2014, 213.
17 Barnard C., nt. (4), 217.
18 Article 163 (now article 179 TFEU) conceived public contracts directed to develop “scientific and technological

bases of Community industry” and to promote international competition and the opening-up of national public
contracts markets.
19 Namely lett. ‘c’: free movement of goods, persons, services and capital.
20 In particular: to open market economy promoting free competition.
21 Now articles 49 and 56 TFEU.
22 Article 1 of Directive 71/305/EEC declared: “member states shall abolish (…) the restriction referred to

affecting the right to enter into, award, perform or participate in the performance of public works contracts”.
23 Arrowsmith S., The purposes of the EU Procurement Directives: Ends, Means and the Implications for National Regulatory

Space for Commercial and Horizontal Procurement Policies, in Cambridge Yearbook of European Legal Studies, 2012, 2.
24 In addition to Directive 93/37/EEC there were Directive 93/36/EEC (public supply contracts), Directive

92/50/EEC (public service contracts) and Directive 93/38/EEC (water, energy, transport and
telecommunications sectors).
25 Except for article 23 of Directive 93/37/EEC that mentioned “employment conditions” but simply to

introduce duties of information.
26 ECJ, C-31/87, 20 September 1988, Gebroeders Beentjes BV v State of the Netherlands. See also ECJ C-225/98, 26

September 2000, Nord-Pas-de-Calais, part. 48-54.

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secondary objectives (such as lowering the unemployment rate) through specific clauses to
be included in the contract. The only limit the Court required was the compliance of such
clauses with the EU law, namely the right of establishment, the freedom to provide services
and the principle of non-discrimination.
   On the basis of this judgment, European Commission openly encourage member states
to use social clauses in public contracts.27 However, it soon became clear that the broad
discretion left to national contracting authorities could hide discriminatory practices against
foreign bidders.28 So, the Court upheld that “restrictions”29 to the economic freedom deriving
by social clauses might be justified only by “imperative reasons” related to public interest
and which apply to all persons or undertakings pursuing an activity in the State of
destination.30 Between the reasons related to public interest the Court expressly included
workers’ protection, but not without caveats.31 To avoid employment protective measures
turning into restrictions for fair competition, workers’ protections must not become a
“disproportionate burden” for the economic freedom of the employer.32 Following this
interpretation, in Portugaia Construções the Court stated that collective agreements could be
applied to posted workers only if they contributed “significantly” to the workers protection33.
This principle was further specified in Finalarte34, in which the ECJ requested protective
measures to be “appropriate for securing the attainment of the objective which those rules
pursue and must not go beyond what is necessary in order to attain it”.35
   Against this approach, the opposite idea of a stronger use of public procurement for social
purposes affected the final approval of the 2004 Directives package, which includes the
general Directive no. 18 of 2004.36
   At least at formal level, Directive no. 18 of 2004 was influenced by theories more
favorable to the social use of public procurements, mentioning social objectives both in the
preamble and in the body. It was confirmed, for instance, the possibility for contracting
authorities to use special conditions to achieve a broad range of collateral objectives like the
recruitment of long-term job seekers or weak minorities, training for the unemployed or


27  Provided the Directive neither forbids nor expressly authorizes member states to regulate secondary
objectives, the Commission stated that public agents were allowed to pursue “a broad range of social matters including
professional training, health and safety, labour relations and the suppression of racial, religious discrimination or discrimination on
the grounds of sex”, European Commission, Communication of 22 September 1989 “Regional and social aspects of
public procurements”, published in OJ C 311/7 of 12 December 1989, 12, spec. par. 46. Even in this case, the only
limit required was the “compliance with the principles of the European Community”.
28 Indirectly in Beentjes, nt. (26), par. 29-30; see also C-360/89, 3 June 1992, Commission v. Italy, par. 16-23; C-

225/98, 26 September 2000, Commission v. French Republic, par. 50-53.
29 Defined by ECJ, C-76/90, Manfred Säger v. Dennemeyer, 25 July 1991, par. 12.
30 ECJ C-76/90, 25 July 1991, Manfred Säger v. Dennemeyer, par. 15.
31 See ECJ C-113/89, 27 March 1990, Rush Portuguesa Ldª v Office national d'immigration, par. 18; ECJ C-369/96,

23 November 1999, Jean-Claude Arblade and Arblade & Fils SARL, par. 36; ECJ C-165/98, 15 March 2001,
Mazzoleni and ISA Sarl, par. 27.
32 Mazzoleni, par. 36.
33 ECJ C-164/99, 24 January 2002, Portugaia Construções, par. 29.
34 ECJ C-49/98, 25 October 2001, Finalarte.
35 Finalarte, par. 32.
36 Idea supported by European institutions like the Council Proposal of Procedures for Public Procurement,

9270/02 of 28 May 2002 and the Internal Market Directorate General, Working Document CC/01/10 of 3
April 2001; see also B. Bercusson, European Labour Law, Cambridge University Press, Cambridge, 2009, 430.

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young persons, exc.37 In recital 24 there was also an indirect reference to pay clauses where
it says “the laws, regulations and collective agreements, which are in force in the areas of
employment conditions, apply during performance of a public contract, providing that such
rules, and their application, comply with Community law”.38
    To determine if social clauses are compliant or not with Community law the Directive
identified as parameter the Posted Workers Directive no. 71 of 1996.
    Accordingly, article 26 of the Directive no. 18 of 2004 recognized the possibility for
contracting authorities to lay down special conditions concerning environmental and social
considerations (including workers’ protection), in so far as they were compatible with
Community law. In light of recital 2, the reference to “the Community law” concerns with
those provisions protecting economic freedoms. In other words, even though article 26
introduced for the first time an express legal basis for social clauses in European public
procurement legislation, the reference to their necessary compatibility with Community law
confirmed the supremacy of economic freedoms.


3. The ECJ limits to social clauses: from Rüffert to Regio Post.

   Through the rigid interpretation of the proportionality test, the ECJ overturned the
traditional idea of domestic employment law as counterweight of market integration and
began to regard at protective legislation as a distortive factor of fair competition.39 This trend
involved also the use of pay clauses, which can give rise to direct or reverse discriminations
in awarding procedures between undertakings established in different member states.40 To
determine whether Directive no. 24 of 2014 truly changed the previous legal framework, it
is necessary to briefly consider how the ECJ transformed it defining notion and limits of
social clauses.41




37 Directive 2004/18/EC, recital 33.
38 Directive 2004/18/EC, recital 34.
39 Deakin S., The Lisbon Treaty, the “Viking” and “Laval” judgments and the financial crisis: in search of new foundations

for Europe's “social market economy”, in Bruun N., Lörcher K., Schömann I. (eds.), The Lisbon Treaty and Social
Europe, Hart Publishing, Oxford, 2012, 19-43; Freedland M., Prassl J., Viking, Laval and Beyond, Hart Publishing,
Oxford, 2014.
40 The reason lays for example on the strong differences in average levels of cost of living that influence the

wage level: the highest national median gross hourly earnings is even 15 times higher than the lowest one (in
2014 the highest median gross hourly earnings in Denmark was EUR 25.52 while in Hungary was EUR 3.59).
Data available at www.ec.europa.eu/eurostat/statistics-explained.
41On the role of European Court of Justice see Costantini S., Direttive sui contratti pubblici e Corte di Giustizia:

continuità e discontinuità in tema di clausole sociali, cit.; Pallini M., Diritto europeo e limiti di ammissibilità delle clausole sociali
nella regolazione nazionale degli appalti pubblici di opere e servizi, in Giornale di Diritto del Lavoro e delle Relazioni Indsutriali,
2016, 525; Corti M., Concorrenza e lavoro: incroci pericolosi in attesa di una svolta, in Giornale di Diritto del Lavoro e delle
Relazioni Indsutriali, 2016, 505; Guadagno S., The right to strike in Europe in the aftermath of Viking and Laval, in
European Journal of Social Law, 2012, I, p. 241; Veneziani B., La Corte di Giustizia e il trauma del cavallo di Troia, in
Rivista Giuridica del Lavoro, 2008, II, 295; Eliasoph I.H., A «switch in time» for the European Community? Lochner
discourse and the recalibration of economic and social rights in Europe, in Columbia Journal of European Law, 2008, III, 467.

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3.1. The Rüffert case.

   The case in Rüffert is well known.42 One could guess the core issue was the compatibility
of the pay clause with the European procurement Directive (at that time Directive no. 37 of
1993). By contrast, the ECJ did not even mention the procurement Directive but focused on
the interpretation of article 49 EC (now article 56 TFEU) and on Directive no. 71 of 1996
(Posting Workers Directive or “PWD”). In particular, the ECJ used the latter as a parameter
even though the contested rule did not aim to govern posting workers situations.43 Like in
Laval case44, the Court seemed to use PWD as a test to define whether the contested law
breach article 49 EC. In line with this reasoning, only pay rate fixed in accordance with article
3 PWD was considered proportionate and compliant with freedom to provide services
granted by article 49 EC. Consequently, the question became whether the rate of pay set by
the contested social clause was fixed in accordance with article 3 par. 1 and 8 PWD.45 The
Court found the contested clause violated both provisions because the rate of pay was fixed
by a collective agreement applicable only to a segment of the construction sector (the public
one, not private sector) and only in a specific region (it was not universally applicable).46
Given this, the Court stated the clause violated the PWD.
   From this case, many implications derived about the compatibility of social clause with
the European law. The use of PWD as parameter of compatibility allows social clauses to
ensure only the minimum conditions fixed in the whole construction sector (public and
private). In fact, the ECJ interpreted article 3 PWD in the light of the effectiveness principle:
member states cannot introduce “conditions of employment which go beyond the
mandatory rules for minimum protection”, because “such interpretation would amount to
depriving the directive of its effectiveness”.47 Assuming this, the Court rejected the idea of
supporting the “promotional” use of social clauses, which aims not to guarantee the lowest
minimum pay rate, but to fix higher conditions in public contracts in order to force private
sector to follow the example, with a general improvement of working conditions.
   Regarding the limits of social clauses, the Court did not recognize the peculiar
characteristics of public procurement sector and required the law or collective agreement
establishing the pay rate had to be applicable to all undertakings in the industry concerned,
both in private and public sector.
   Rüffert caused many adverse reactions from trade unions and European Institutions
themselves.48 Despite the hostility generated and the attempts to limit its relevance, seven


42 ECJ C-346/06 3 April 2008, Dirk Rüffert v. Land Niedersachsen; see McCrudden C., The Rüffert case and public
Procurement, in M. Cremona (ed.), Market Integration and Public Services in the European Union, Oxford University
Press, Oxford, 2011, 117-148.
43 Rüffert, par. 20.
44 Laval, par. 86 -111.
45 Rüffert, par. 23.
46 Rüffert, par. 29-39.
47 Rüffert, par. 33, but see also Laval, par. 80.
48 European Commission, “Buying Social - A Guide to Taking Account of Social Considerations in Public Procurement”,

nt. (3), 46-47: “this judgment has no implications for the possibilities offered by the Procurement Directives to
take account of social considerations in public procurement. It only clarifies that social considerations (in public

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years later the ECJ confirmed its interpretation in the Bundesdruckerei case, even though with
some difference.


3.2. The Bundesdruckerei case.

   The question at stake in Bundesdruckerei49 was whether – in case the service is entirely
provided in a different member state – article 56 TFEU or article 3 PWD preclude
contracting authorities from requiring subcontractors to pay their workers a minimum wage
higher than the one usually paid in their home state.
   Contrary to what happened in Rüffert, the Court excluded the applicability of PWD
because there was not a cross border situation within the meaning of article 1 PWD: the
subcontractor was based in Poland and its employees would entirely carry out the service in
Poland50. In this judgment, the Court stated that the use of PWD as test of compatibility for
social clauses depended form the effective existence of conditions listed in article 1 par. 3
PWD.
   Provided the contract fell under the application of the Directive, the ECJ looked at the
procurement legislation (in this case the Directive no. 18 of 2004).51 The Court assumed
requirements concerning with minimum wage were “special conditions relating to the
performance of a contract” within the meaning of article 26 Directive no. 18 of 2004.52 Given
the applicability of art. 26, the question became to determine whether the pay clause
complied with the limits established by this provision: a) the compatibility with the
Community law (in this case art. 56 TFEU) and b) the proportionality of the economic
sacrifice imposed on tenderers. Evaluating the proportionality, the ECJ declared that the
contested pay clause was “an additional economic burden that may prohibit, impede or
render less attractive the provision of their services in the host member state”.53 The
argument was that the imposition of a fixed minimum wage usually aimed to guarantee a
“reasonable remuneration” to employees54, which must be determined in proportion to the
cost of living in that state. Consequently, the Court upheld that the oblige to pay a specific
remuneration completely delinked from the cost of living in a different State violated article

procurement) regarding posted workers must also comply with EU law, in particular with the Directive on the
posting of workers”.
49 ECJ C-549/13, 18 September 2014, Bundesdruckerei GmbH v Stadt Dortmund concerning the law of North

Rhine-Westphalia (Germany) which required, as awarding criterion, bidders to agree – at the time of tender
submission – to pay their employees a minimum hourly wage fixed by the law. In May 2013, the city of
Dortmund issued a call for tenders for the provision of documents’ digitalization service. The contracting
authority requested the successful German undertaking (Bundesdruckerei GmbH) to guarantee the same
minimum wage for workers employed by its polish subcontractor, who would entirely provide that service in
Poland. The awarded company refused because the subcontractor would be unable to pay such wage, since it
was unusual in Poland considering the standards of living. See Forlivesi M., La clausola sociale di garanzia del salario
minimo negli appalti pubblici al vaglio della Corte di Giustizia Europea: il caso Bundesdruckerei, in Rivista Italiana di Diritto
del Lavoro, 2015, II, 558;
50 Bundesdruckerei, par. 27.
51 Bundesdruckerei, par. 28.
52 Bundesdruckerei, par. 28.
53 Bundesdruckerei, par. 30.
54 Bundesdruckerei, par. 34.



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56 because liable to “prevent subcontractors established in a different member state from
deriving a competitive advantage from the differences between the respective rates of pay”.55
   Summarizing, first, the ECJ excluded the use of the PWD as compatibility test for social
clauses where there is not an “effective” cross border situation listed in article 1 PWD.
Second, the Court recognized in article 26 Directive no. 18 of 2004 the legal basis for social
clauses and used the ambiguous limit this article introduced (“the compatibility with the EU
law”) to define social clauses’ fairness. Third, according to Rüffert, the ECJ did not consider
public procurement sector’s specific characteristics and kept to require a minimum pay
applicable both in private and public sector. As consequence, the pay clause applicable only
to public contracts was inappropriate to guarantee workers’ protection because it led to
unequal treatment between workers involved in private and in public contracts.56


3.3. The RegioPost case.

    In 2015, the ECJ ruled again the matter in RegioPost.57 In contrast with Rüffert and
Bundesdruckerei, scholars welcomed this judgment as more respectful of social purposes, even
though the Court’s reasoning did not seem to reframe the balance between social rights and
economic freedoms crafted in the previous cases.58
    In RegioPost the questions at issue were basically two. First, whether the ECJ had
jurisdiction to rule the matter despite the absence a cross-border situation. Second, whether
the contested clause represented a restriction within the meaning of article 56 TFEU or a
violation of PWD.
    The ECJ addressed the first question looking at the contract’s value (which fell under the
application of the Directive no. 18 of 200459) and stating a general principle on ECJ
jurisdiction: every time the procurement Directive is applicable to a contract, that contract
must be regarded as having “a certain cross-border interest”60, regardless of the effective
presence of cross-border situations. In fact, undertakings established in different member
states could lose their interest in participating in the contract because the pay rate fixed by


55 Bundesdruckerei, par. 34.
56 Bundesdruckerei, par. 32: “such measure is not appropriate for achieving that objective if there is no
information to suggest that employees working in the private sector are not in need of the same wage protection
as those working in the context of public contracts”.
57 ECJ C-115/14 of 17 November 2015, RegioPost GmbH & Co. KG v. Stadt Landau in der Pfalz. The law of a

German Land (Bundesland Rhineland-Palatinate) required tenderers to undertake at the time of submission to
pay their staff a certain minimum hourly wage, under penalty of exclusion. In April 2013, the city of Landau
issued a call for tenders at European level to award a public contract concerning the postal services of the
municipality. All the bidders were established in Germany and none of them subcontracted the service to
undertakings based in different member states. The administration excluded one of them (RegioPost GmbH
& Co. KG), because it refused to undertake to pay the minimum rate. On this see Carosielli G., La sentenza
RegioPost e l’anima “dimezzata” della Corte di Giustizia europea nella tutela dei lavoratori impegnati negli appalti pubblici, in
Diritto delle Relazioni Industriali, 2016, III, 881.
58 Pecinovsky P., Evolution in the social case law of the Court of Justice, in European Labour Law Journal, Vol. 7, Issue 2,

2016, 295.
59 RegioPost, par. 47-48.
60 RegioPost, par. 51.



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social clauses is too high and reduces their profits. As a consequence, the ECJ has jurisdiction
to rule cases which fell under the Directive.
   The second question was whether article 26 Directive no. 18 of 2004 precluded national
social clauses from laying down a minimum wage that tenderers (and their subcontractors)
must pay to their employees. Alike in Bundesdruckerei, the Court considered such pay clause
as a special condition within the meaning of article 26, which could be lawfully attached to
the contract but must comply with the EU law, namely article 56 TFEU.61
   Given the procurement Directive did not point out the criteria to define the compatibility
of these conditions, it is necessary to define them interpreting the EU primary law.62
Considering recital 34 Directive no. 2004/18, the ECJ chose as parameter – once again – the
Directive no. 96/71 (namely article 3 par. 1).63 However, in this case the Court reversed
Bundesdruckerei, where it excluded the applicability of PWD since the absence of an “effective”
cross border situation within the meaning of article 1 PWD. By contrast, in RegioPost, the
ECJ considered only “potential” cross-border situations and the necessity to respect ex ante
principles established in PWD: within the common market, indeed, it is always possible for
foreign enterprises to participate in awarding procedures or for domestic companies to use
transnational-posted workers. Under these premises, the ECJ declared the compatibility of
the contested condition with PWD. It complied with article 3 par. 1, lett. c (the condition
was universal applicable because fixed by the law), and it laid down a “minimum rate of pay”
(there were no other national laws or collective agreements imposing a lower wage in that
sector).64
   In addition, the contested condition was considered compliant with PWD even though it
was applicable only to the public sector of postal services.65 Reversing both Rüffert and
Bundesdruckerei, the ECJ recognized indeed the peculiar characteristics of public procurement
sector that derived, among the others, by the existence of dedicated EU laws.66
   In contrast with many positive commentaries, RegioPost does not seem to change
principles established in Rüffert (and confirmed in Bundesdruckerei): social clauses find their
legal basis in article 26 Directive no. 2004/18 and so are subject to the limit of “compatibility
with the EU law”; this limit is still represented by article 3 PWD, which now must be applied
every time the contract falls under the Directive (even in absence of a “concrete” cross-
border situation).



61 RegioPost, par. 54.
62 RegioPost, par. 59.
63 RegioPost, par. 58-61.
64 RegioPost, par. 62; see also General Advocate Bot conclusions in the Rüffert case, par. 132-133.
65 RegioPost, par. 64-65.
66 The Court used the simplest argument to justify the peculiarity of public procurement sector: the existence

of a specific legislative body. However, it seems the ECJ underestimated another argument as important as the
previous one: the need to ensure impartiality and good functioning of public administrations as contractual
parties. Supporting the idea of different characteristics and rules between private and public sector see Clarich
M., Considerazioni sui rapporti tra appalti pubblici e concorrenza nel Diritto europeo e nazionale, in Diritto Amministrativo,
2016, I, 71; see also the “principal-agent” theory developed in common law countries on which see Heimler
A., Appalti pubblici, prassi applicative e controlli: quale spazio per gli aspetti sostanziali?, in Mercato, Concorrenza e Regole,
2015, I, 184; Napolitano G., Abrescia M., Analisi economica del diritto pubblico, Il Mulino, Bologna, 2009, 95.

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3.4. Notion and limits of social clauses in ECJ interpretation.

    The overview allows to define the notion and limits of social clauses as interpreted by the
ECJ. Since the entry into force of Directive no. 18 of 2004, the Court recognized the legal
basis for social clauses in article 26. Before and after the Directive no. 18 of 2004 the limit
for social clauses is the compliance with the “European law”67, namely general principles of
Treaties (like article 56 TFEU) and PWD. Given the potential cross-border “interest” of
undertakings based in other member states in participating or using posted workers, social
clauses must comply with article 3 PWD every time the contract falls under the procurement
Directive68, regardless the concrete presence of cross border situations listed in article 1
PWD.69
    Furthermore, the ECJ laid down other limits, which contracting authorities must respect
in awarding procedures.
    First, social clauses must ensure a “minimum” protection for workers (limited to basic
conditions). In contrast with national traditions and international conventions’ goals70, the
ECJ adopted the “minimalist” approach and rejected the idea of a “promotional” use of
social clauses, which means to fix better standards in public sector (where public
Administration should act as “model employer”) to push undertakings in private sector to
follow the example.71 By contrast, the Court embraced a “minimalist” idea of pay clauses,
which must ensure the lowest standards set in that sector within the purposes of article 3,
par. 1 lett. a-g PWD.72 As clarified in RegioPost, this limit does not create problems in
Countries where the required pay rate is fixed by the law or collective agreements with general
effectiveness, if the minimum pay rate does not exceed the provisions of article 3 PWD. On
the contrary, in countries where minimum pay is fixed by collective agreements without
general effectiveness (like Italy), the use of social clauses could violate the PWD, and
consequently article 26 Directive no. 18 of 2004.73 The violation is related to two reasons.
On one side, these collective agreements do not comply with article 3 PWD, which requires
minimum pay rate set by the law or collective agreements universally applicable. On the other
side, multiple contracts per each sector could imply the existence of a lower minimum pay
than that required by the social clause. This means the clause guarantees standards exceeding
the “minimum” protection within the purpose of PWD.
    The second limit concerns the “universal” applicability of pay rate fixed by the law or
collective agreements. This limit has been mitigated in RegioPost, where the ECJ stated that
the “universal” applicability of the provision establishing minimum pay rate can interest only
the public sector and not the private one.

67 RegioPost, par. 54.
68 Considering the value of the contract fixed by article 7 Directive 2004/18.
69 RegioPost, par. 51.
70 See ILO Convention no. 94 and Recommendation no. 84 and N. Bruun, A. Jacobs, M. Schmidt, Ilo Convention

no. 94 in the aftermath of the Rüffert case, in Transfer: European Review of Labour and Research, vol 16, Issue 4, 2010, 473
– 488.
71 Arrowsmith S., The Law of Public and Utilities Procurement, nt. (8), 1239.
72 RegioPost, par. 62.
73 In Italy, for instance, there are about 900 national collective agreements and many of them rule the same

sector or industry.

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   Third, in line with the principle of transparency and impartiality of public Administration,
and to avoid discriminatory practices in favor of domestic tenderers, the condition has to be
expressed in a clear manner and mirrored in the contract74.
   According to the ECJ reasoning (especially in Bundesdruckerei), there is a case in which the
use of pay clauses is completely ineffective: contracts for the provision of services, if the
contractor (or subcontractor) plans to provide the service entirely in its home state, where
wages are lower. In this case, which is growing its relevance thank to technological evolution,
the clause that requires to pay a higher remuneration compared to normal standards of living
violates the PWD and article 26 Directive no. 18 of 2004, so the use of social clauses seems
to be useless.


4. Social Clauses in 2014 Directives: a new impulse towards social purposes?

   In 2014, a new package of Directives repealed the previous procurement legislation75.
Different aims drove the revision. On the one hand, the new regulation aimed to achieve
economic objectives (to increase internal markets’ exposition to competition76, develop
public spending efficiency77) and to make clearer the interpretation of the EU legislation
(through the definition of unclear notions and concepts78 and the incorporation of specific
statements of ECJ).79 On the other hand, the Directive, both in the preamble and in the body,
put a strong accent on the use of procurements to achieve common “societal goals”.80
   With particular concern to pay clauses, it was argued whether the new discipline reframed
the primacy of economic freedoms over social rights defining new functions and limits for
social clauses. These expectations were related to two questions. First, it was discussed
whether the notion of “social market economy”81 introduced by the Lisbon Treaty might
have had any effect on the evaluation of the social clauses’ compatibility with the European
law. In fact, after the Lisbon Treaty the EU single market shall aim also at “social progress”.82
The reference to this new market’s goal could support the transition to a new notion of social
clauses based on their “promotional” rather than “minimalist” function. Under the
“promotional” notion, authorities could require contractors to pay higher wages than the

74 RegioPost, par. 83. See also ECJ C-368/10, 10 May 2012, European Commission v. Netherlands, par. 109.
75 Beside the Directive 2014/24/EU (which repeals Directive 2004/18/EC), there are Directives 2014/25/EU
(water, energy, transport and postal services sectors) and 2014/23/EU (concession contracts).
76 Directive 2014/24, recital 1.
77 Directive 2014/24, recital 2.
78 Such as “procurement”, “acquisition”, “contracting authorities”, “economic operator”, “award criteria”.
79 Directive 2014/24, recital 2.
80 See Directive 2014/24, recital 2 and on this C. Barnard, To Boldly Go: Social Clauses in Public Procurement, nt. (4),

210; see also Varva S., Promozione dei soggetti svantaggiati negli appalti pubblici. La regolazione locale e la direttiva
2014/24/Ue, in lavoro e Diritto, 2016, I, p. 53; Varva S., Concorrenza e promozione sociale. Le nuove prospettive alla luce
della direttiva appalti 2014/24/UE, in Perulli A. (ed.), L’idea di diritto del lavoro, oggi, Wolters Kluwer Cedam,
Padova, 188; Kaupa C., Public Procurement, Social Policy and Minimum Wage Regulation for Posted Workers: Towards a
More Balanced Socio-Economic Integration Process?, in European Papers, 2016, I, 127.
81 Article 3 par. 3 TEU. On the notion of “social market economy” see Joerges C., Rödl F., “Social Market

Economy” as Europe’s Social Model?, EUI Working Paper No. 2004/8. S. Deakin, The Lisbon Treaty, the “Viking”
and “Laval” judgments and the financial crisis: in search of new foundations for Europe's “social market economy”, nt. (39).
82 Article 3 par. 3 TEU.



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minimum fixed in that sector, even though the rate is fixed by a collective agreement without
general effectiveness. Second, it was discussed whether the new Directive might have
adopted effective measures to fight social dumping and abuses in the use of posted workers83,
given that Bundesdruckerei left the question unsolved.
   The most meaningful provisions of Directive no. 24 of 2014 to answer these questions
are article 18 par. 2 and article 70.


4.1. Article 18 par. 2.

    Article 18 opens the second chapter of the Directive, dedicated to the “General rules” of
public procurements. It contains two paragraphs. The first one reaffirms well-known
principles in awarding procedures like equal treatment and non-discrimination. By contrast,
the second paragraph introduces an unprecedented provision in this field, and for this reason
has been properly renamed “labour clause”.84 According to this provision, member states
“shall” adopt the necessary measures to guarantee that, during the performance of public
contracts, economic operators comply with applicable obligations concerning
“environmental, social and labour law established by Union law, national law, collective
agreements or by the international environmental, social and labour law provisions listed in
Annex X”. 85
    Through this clause Directive no. 24 of 2014 obliges member states to ensure the respect
of obligations concerning with labour standards and deriving from Union law, national law,
collective agreements and ILO conventions. Looking at this provision, there are at least two
particular features that could influence nature and effects of social clauses under the new
discipline.
    First, article 18 seems to put all legal sources (EU law, national law, collective agreements
and ILO Conventions) at the same level, without defining a hierarchy between them, or
establishing – as in the past – the primacy of the Union law over national law or collective
agreements. Second, the reference to “collective agreements” (and to their pay clauses) is
worded in general terms without any specific mention of their necessary general
effectiveness. This could mean that the new Directive does not request such contracts to
comply with the requirements of article 3 PWD (universal effectiveness and ensure the
minimum pay rate in that sector).
    In addition, the relevance of article 18 is increased by many references that other articles
of the Directive make to it and that extend its effects beyond the performance stage: namely
article 56, article 57, par. 4, lett. a); article 69 and article 71, par. 1 and 6. During the stage of


83 Like in the case of letter-box companies, on which see Cremers J., Letter-box Companies and Abuse of the Posting
Rules: How the Primacy of Economic Freedoms and Weak Enforcement Give Rise to Social Dumping, in ETUI Policy Brief,
n. 5, 2014.
84 Barnard C., To Boldly Go: Social Clauses in Public Procurement, nt. (4), 217.
85 Those concerning labour conditions are the ILO Conventions no. 87 (Freedom of Association and the

Protection of the Right to Organise), no. 98 (Right to Organise and Collective Bargaining), no. 29 and 105
(Forced Labour), 138 and 182 (Minimum Age and child labour), no. 111 (Discrimination Employment and
Occupation), 100 (Equal remuneration).

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participants’ selection and award of contract, article 56 introduces the possibility for
contracting authorities not to award a contract to the tenderer whether the tender does not
comply with the applicable obligations – included the labour obligations – mentioned in
article 18 par. 2. This, even in the case that the tender results the most economically
advantageous. During the qualitative evaluation of tenderers, article 57, par. 4, lett. a)
recognizes that contracting authorities may exclude from participation any economic
operator when a violation of obligations referred to in article 18 par. 2 can be demonstrated
“by any appropriate means”. Then, considering the evaluation of abnormally low tenders,
article 69 states that tender “shall” be rejected when the contracting authority establishes that
it “is abnormally low because it does not comply with applicable obligations referred to in
article 18, par. 2”, included obligations concerning employees’ pay. Article 71 par. 1 extends
to subcontractors the oblige to fulfil the obligations of article 18 par. 2 and requires member
states to ensure mechanisms of joint liability between subcontractors and the main contractor
in compliance with the conditions set out in Article 18 par 2.


4.2. Article 70.

    Article 70 ruling the “conditions for performance of contracts” replaces the previous legal
basis of social clauses in public procurements (article 26 Directive no. 18 of 2004). Combined
with article 18 par. 2, this provision could represent an additional evidence of the supposed
new role of social clauses in European procurement legislation. This change could appear
even clearer if article 70 is compared with the previous article 26: the only limit article 26
required for pay clauses was the “compatibility” with the European legislation (“provided that
these are compatible with Community law”). So, the criteria were found by the ECJ in article 3 of
Posting Workers Directive. Article 70 partially differs from article 26. It specifically points
out that they may include “employment-related considerations”, while article 26 used general terms
like “social (and environmental) considerations”. Then, in contrast with article 26, in article 70 there
is no one reference to the limit of compatibility with the European legislation. In other
words, in article 70 the reference to the limit of compatibility with the EU law disappears,
and article 18 par. 2 does not seem to introduce a hierarchy between different sources that
must be respected during the entire procurement procedure (EU law, national law, collective
agreements and ILO conventions). Given this, one could argue that the Directive no. 24 of
2014 effectively aims to adopt a new balance between economic freedoms and social rights,
changing notion and limits of social clauses under EU law. In other words, at first sight it
seems the combined interpretation of articles 18 par. 2 and 70 allows to delink social clauses
from the evaluation of economic compatibility with the EU law and from proportionality
test.
    By contrast, a deeper analysis of the whole Directive leads to a different solution.




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4.3. Directive 2014/24 as “social” turning point in procurement legislation?

    The literal interpretation of articles 18 and 70 Directive no. 24 of 2014 seems to make
social clauses independent from the limit of compatibility with the EU law, and consequently
free from evaluations concerning the proportionality of economic sacrifices public
Administrations are allowed to require from contractors. If true, this would reverse the
previous regime of social clauses based on their strict compatibility with the economic
freedoms. In addition, this would finally encourage the “promotional function” of social
clauses, obliging contractors to pay wages even higher than those required by article 3 PWD,
or set by collective agreements without general effectiveness.
    This interpretation can be supported interpreting articles 18 par. 2 and 70, but also
appreciating recent reforms at EU level that aim to increase the importance to social aspects
and to address distortions and harmful effects of the economic integration process within
the EU: the Lisbon Treaty, the recognition of the Charter of Fundamental Rights of the EU
and the European social pillar of 2017.
    The enactment of the Lisbon Treaty and the promotion of values such as social justice,
solidarity, sustainable development, but above all the establishment of a new paradigm of
common market functioning (the “social market economy”) strengthen the role of social policies
in the balance with economic purposes. Between the purposes of “social market economy”
there are the maximization of the Common Market’s efficiency, but also the full employment
and “the social progress”. In particular, the reference to social progress could support a
different interpretation by the ECJ in the balance between economic freedoms and social
rights, and consequently a new reasoning on the compatibility of social clauses with EU law.
    A further element in favor of this new interpretation could come from some provision of
the Charter of Fundamental Rights, notably article 28, which establishes the right to negotiate
and conclude collective agreements “at the appropriate levels”, and article 31, which ensures
the respect of employee’s health, safety and dignity. Nevertheless, the effect of the Charter
on the ECJ interpretation of EU law is not noteworthy, especially in public procurement
cases. In previous judgments concerning social clauses (like Bundesdruckerei and RegioPost) the
ECJ not even mentioned the Charter (as well as the Directive no. 24 of 2014).
    The growing importance of social profiles in EU policies is promoted also by the
European Pillar of Social Rights jointly signed by the European Parliament, the Council and
the Commission on November 2017. Even though this declaration contains programmatic
objectives (without mandatory effects), its analysis can be useful to understand the evolving
trends in EU policy-making. In particular, point 6 of the declaration is focused on wages and
states that “adequate minimum wages shall be ensured, in a way that provide for the
satisfaction of the needs of the worker and his/her family in the light of national economic
and social conditions” and that “all wages shall be set (…) according to national practices
and respecting the autonomy of the social partners”. Like Directive no. 24 of 2014, the
declaration does not mention any limit of compatibility with the EU law for measures that
ensure fair wages and focuses on tools and actors at national level (given the lack of EU
competence).



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    By contrast, Directive no. 2014/67/EU (on the enforcement of Directive no. 96/71/EC)
seems to reaffirm the previous framework, even though with some softening. Article 1 –
defining the field of application – points out the two purposes of the Directive. First, to
guarantee respect “for an appropriate level of protection of the rights of posted workers for
the cross-border provision of services”. Second, to facilitate at the same time the exercise of
freedom to provide services and promoting fair competition between service providers, and
thus supporting the functioning of the internal market. In this case, the Directive comes back
to the previous framework where social rights can be used until they do not become
disproportionate burdens for economic freedoms.86
    As said, despite the listed arguments in favor of a possible new notion of social clauses,
the analysis of Directive no. 24 of 2014 leads to reject this interpretation and confirm the
previous framework where the PWD is the main criterion to evaluate the compatibility of
social clauses. The arguments in favor of this solution come from the systematic
interpretation of articles 18 par. 2 and 70 in light of other provisions of the whole Directive
no. 24 of 2014.
    Preliminarily, recital 1 – worded as a general key of interpretation for the entire Directive
– states that the award of public contracts must comply with the principles of Treaties.
Among them, recital 1 expressly mentions economic freedoms (like free movement of goods,
freedom of establishment and to provide services, as well as the principles deriving
therefrom, such as equal treatment, non-discrimination, mutual recognition, proportionality
and transparency). No one reference is dedicated within this recital to social interests.
    Focusing on article 18 par. 2, at first sight it seems to not require collective agreements
with general effectiveness to set the minimum rate of pay. Nevertheless, recitals 37 and 39
and article 69 par. 5 expressly confirm the previous interpretation based on the necessary
compliance with PWD requirements: universal applicability and minimum pay rate in that
sector.
    Recital 37 calls for national measures ensuring in awarding procedures compliance with
labour law obligations. Those measures can be set also within collective agreements, but with
caveats. It is essential that “such rules, and their application, comply with Union law”. The
meaning of “Union law” is clarified in the second part of recital 37: “such relevant measures
should be applied in accordance with Directive no. 96/71/EC, and in a way that ensures
equal treatment and does not discriminate directly or indirectly against economic operators
and workers from other member states”.
    Recital 39 states that particular obligations could be mirrored in contract clauses and that
“it should also be possible to include clauses ensuring compliance with collective agreements
in compliance with Union law in public contracts”. In cases where clauses require the respect
of particular conditions established by collective agreements, it is necessary they comply with
the EU law (included article 3 of PWD), without any reference to the specificities of public
procurement sector.
    Article 69 par. 5 introduces the duty of cooperation between member states and obliges
them to make available to other member states any information at their disposal. Between

86Article 4 represents the real core of the Directive that introduces criteria to determine whether posting
practices are genuine and tools to prevent abuses and circumventions.

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them there are laws, regulations and “universally applicable collective agreements”. No one
reference is made to collective agreements without general effectiveness.
   Article 70 – which provides the new legal basis for social clauses – comes into
consideration because of the absence of any reference to the limit of compatibility of social
clauses with the European law. As said, it would represent one of the most important
elements of innovation of Directive no. 24 of 2014. Nevertheless, article 70 should be
interpreted in light of recital 98 of the Directive, that makes clear how conditions concerning
social aspects should be applied “in accordance with Directive no. 96/71/EC, as interpreted
by the ECJ and should not be chosen or applied in a way that discriminates directly or
indirectly against economic operators from other member states”. In its second part, recital
98 is even clear: “requirements concerning the basic working conditions regulated in
Directive no. 96/71/EC, such as minimum rates of pay, should remain at the level set by
national legislation or by collective agreements applied in accordance with Union law in the
context of that Directive”.
   Not even the reference in article 18 par. 2 to the international labour law provisions listed
in Annex X looks enough to argue a real change in social clauses’ notion. Among the
conventions listed in Annex X, indeed, it is not mentioned the ILO Convention no. 94 of
1949 on social clauses in public procurements, which does not require they are fixed by
collective agreements with general effectiveness.


5. Toward a “social” future for the EU?

   Despite these arguments, one could still argue article 18 par. 2 and article 70 Directive no.
24 of 2014 – combined with the ECJ interpretation in RegioPost – introduced a special regime
for the evaluation of social clauses’ compatibility with the European law. This because
procurement legislation (article 70) rules a special sector (public contracts) which differs from
that one regulated by PWD.87 Such theory, however, seems to violate the interpretation of
the entire Directive no. 24 of 2014 and the many references to the PWD made by the same
Directive. In fact, even though they are made in softer and sometimes vague terms,
references to PWD are still present in Directive no. 24 of 2014 and they still make article 3
PWD the parameter of compatibility of social clauses.
   Without a specific legal intervention that declares the peculiarity of social clauses in
procurement sector, in its next cases the ECJ will probably continue to use the PWD as a
parameter of compatibility for social clauses, confirming the solution adopted in RegioPost
where – considering recital 34 Directive no. 2004/18 (now transposed in recital 98 Directive
no. 2014/24) – the ECJ defined social clauses compatibility using article 3 par. 1 PWD.88
   If compared to previous regulation quite totally focused on economic purposes, Directive
no. 2014/24 undoubtedly represents a remarkable advancement in social aspects’


87 Forlivesi M., Sulle clausole sociali di equo trattamento nel nuovo codice degli appalti pubblici, in Rivista Italiana di Diritto
del Lavoro, IV, 2017, 686; see also Allamprese A., Orlandini G., Le norme di rilievo lavoristico nella nuova direttiva sugli
appalti pubblici, in Rivista Giuridica del Lavoro, 2014, I, 169.
88 RegioPost, par. 59-61.



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                                                                                                         Section: Miscellaneous




consideration within the EU law. Nevertheless, this change represents a starting point. Even
in Directive no. 24 of 2014 social sphere plays a secondary role if compared to economic
aims (like the good functioning of the common market). Of course, to fulfill the social goals
fixed by the European social pillar and mentioned by the European Directive no. 24 of 2014
itself, wide reforms are still necessary changing the nature itself of European Union. In this
long path, public procurements with their peculiar rules and their growing impact on EU
economy can represents one the most effective tool.
    Even though in this particular moment such kind of legal reforms seem to be very difficult
to be enacted by European Institutions, an advancement in this direction could come from
a different field: the proposal for a Directive on adequate minimum wages in European
Union of October 28, 2020.89
    Namely, article 9 of the proposal states: “in accordance with Directive 2014/24/EU,
Directive 2014/25/EU and Directive 2014/23/EU, Member States shall take appropriate
measures to ensure that in the performance of public procurement or concession contracts
economic operators comply with the wages set out by collective agreements for the relevant
sector and geographical area and with the statutory minimum wages where they exist”.
    The reference to Directive 2014/24 (“in accordance with Directive 2014/24/EU”) precludes
arguing that article 9 refers to “collective agreements” without any other requirements, like
their general effectiveness (supporting that interpretation which highlights the peculiarity of
public procurement sector).
    On the contrary, it refers to the previous version of PDW, but particularly such reference
confirms that also the Proposal of Directive on adequate minimum wages (focusing on article
9 on public procurements) requires the obligation of economic operators falls within
applicable obligations in the field of labour law set in article 18 par. 2 of Directive 2014/24.
As said before, this implies that obligations of economic operators must be interpreted under
the recitals 37 and 39 and article 69 par. 5 of Directive 2014/24, which support the previous
interpretation based on the necessary compliance with PWD requirements: universal
applicability and minimum pay rate in that sector.
    Concluding, the proposal for a Directive on adequate minimum wages at EU level
represents an unprecedented opportunity to fulfill social goals fixed by the European social
pillar, even throughout public procurements sector. For the first time, political and social
context offers to EU the concrete possibility to set a new balance for its priorities. The
enactment of such reform in the field of minimum wages could reinforce the attempts to
strengthen the role of social clauses and overcome the mentioned difficulties encountered in
the interpretation by ECJ of procurement legislation.

89 Available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52020PC0682. On this see
Menegatti E, Il salario minimo nel quadro europeo e comparato. A proposito della proposta di direttiva relativa ai salari minimi
adeguati nell’Unione europea, in Diritto delle Relazioni Industriali, I, 2021, 41; Proia G., La proposta di direttiva
sull’adeguatezza dei salari minimi, in Diritto delle Relazioni Industriali, I, 2021, 26; Razzolini O., Salario minimo, dumping
contrattuale e parità di trattamento: brevi riflessioni a margine della proposta di direttiva europea, in Lavoro Diritti Europa,
2021, available at https://www.lavorodirittieuropa.it/images/Razzolini_salario_minimo_LDE_2_1.pdf;; Lo Faro A.,
L’iniziativa della Commissione per il salario minimo tra coraggio e temerarietà, in Lavoro e Diritto, 2020, IV, 540; Treu T.,
La proposta sul salario minimo e la nuova politica della Commissione europea, in Diritto delle Relazioni Industriali, I, 2021, 1;
Ratti L., La proposta di direttiva sui salari minimi adeguati nella prospettiva di contrasto alla in-work poverty, in Diritto delle
Relazioni Industriali, I, 2021, 59;

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                                                                                      Section: Miscellaneous




   Nonetheless to avoid the same interpretative problems experienced by public
procurements legislation on the role of PWD as a parameter, especially in those countries
where collective agreements are not generally applicable, it could be helpful to expressly
recognize in article 9 of the Proposal the peculiarity of social clauses in procurement sector.




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