Adoption of EU Business and Human Rights Policy by Peter Drahn

Author:Peter Drahn
Language: eng
Format: epub
ISBN: 9783030469351
Publisher: Springer International Publishing

To assess, if this clause has been transposed or not is difficult because ‘appropriate measures’ are not defined. Therefore, this analysis is not going to try to determine if measures were appropriate or not. Instead, I only assess, if the respect for social and labour law obligations was laid down as a procurement principle or not. If legislators decide to include the social clause among national principles, they thereby emphasise its importance vis-à-vis the contracting authorities and the public. The transposition score should reflect this. In past procurement decisions, social criteria were often regarded as being ‘external’ to the procurement decisions and were, therefore, less relevant than, for example, attributes and price of procured items. If, however, social criteria are included in the principles of procurement, it is difficult to argue that social criteria are ‘external’ to the procurement (Interview 6).7 In the assessment, this clause will, therefore, be denoted as voluntary. The clause which states that member states ‘shall take appropriate measures’ is not voluntary, but to include the social provision in the procurement principles is voluntary.

To attribute a human rights score to the social clause is not straightforward. On the one hand, it is the central human rights clause in the procurement directives. On the other hand, the effect on human rights is small, if the social clause is only listed under the procurement principles. The real effect on human rights only unfolds, once provisions that regulate specific phases of the procurement process demand adherence to the social clause. Therefore, the establishment of the social clause as a procurement principle alone is not regarded as highly relevant for the legal protection of human rights, which is why I assign this provision a human rights relevance of 1. When the obligations of the social clause apply to other stages of the procurement process, they are assigned higher human rights scores and will also be treated as mandatory, where appropriate (see below).

The second provision with human rights relevance in the public procurement directives, provision PP 2, states that the social clause should also apply to the subcontractors of the economic operators.8 From a human rights perspective, this is highly relevant because most human rights violations take place at the lower end of the supply chain. Subcontractors are often located outside the EU, making this a provision with potentially extraterritorial reach (human rights score of 3). The formulation of the degree of obligation is not straightforward. The clause states that the observance of the social clause by subcontractors “is ensured through appropriate action” (PSD, Article 71(1)) by the member states. While the wording ‘is ensured’ is clearly mandatory, the formulation ‘appropriate action’ gives member states discretion of how to achieve this. For the assessment, I consider this provision as transposed, if the transposing laws unequivocally state that subcontractors must abide by the social clause. For the clause to be considered as fully transposed this must be stated as a matter of principle, and not only with respect to a specific aspect of phase of the procurement process.

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