By Eamonn Conlon
Partner, A&L Goodbody, Dublin
In this post, Eamonn Conlon considers whether the 2014 EU Procurement Directives provide a basis for liability of public buyers or their suppliers for severe labour rights abuses experienced by workers, including modern slavery, using a construction case study. While the post examines Irish implementing legislation in particular, much of the analysis is of broader application across EU member states.
According to the UN Guiding Principles on Business and Human Rights (UNGPs) governments should promote respect for human rights by those with whom they do business. They should also take steps to ensure that their domestic judicial mechanisms are effective as a route for victims of business-related human rights abuses to access a legal remedy. As this post explores, these norms raise interesting questions for EU procurement law.
The EU’s 2014 directives governing general public sector, utilities, and concessions procurement include two ‘principles of procurement’ (art 18 public sector procurement Directive, art 36 utilities Directive and arts 3 and 30 concessions Directive). The first principle requires contracting authorities to treat ‘economic operators’ equally and without discrimination and to act transparently and proportionally. Economic operators are suppliers of goods, services and works on the market.
The second principle requires member states to take appropriate steps to ensure that, in performing public contracts, economic operators comply with applicable obligations in the field of environmental, social, and labour law including the ILO core conventions. The ILO’s eight ‘core’ conventions prohibit forced labour, child labour, and workplace discrimination, and provide for freedom of association, the right to organise, and collective bargaining. All EU member states have ratified them.
EU Directives are addressed to member states, who must give them effect in their domestic law. Member states have responded in different ways to the new requirement to ensure compliance with ILO conventions by their suppliers. As reported on this blog by Théo Jaekel, the Swedish parliament rejected a government proposal to make core labour standards binding on public contractors. Norway (in the European Economic Area) requires public authorities to ‘have appropriate measures/procedures/routines to promote respect for fundamental rights through public procurement when there is a risk of violation of such rights.’[i] The UK, apart from Scotland, decided to avoid ‘gold plating’ its regulations and left adherence to the new principle of compliance with ILO core conventions as a matter for administrative measures.
Enacted to implement the 2014 public procurement Directive, Ireland’s 2016 public procurement regulations require economic operators to comply with applicable obligations under ILO core conventions in performing public contracts. Contracting authorities must, by their contracts, require such compliance. Ireland has matching terms for procurement of concessions and by publicly-owned utilities.
In the rest of this post I look at whether Ireland’s new regulations under the 2014 Directives provide a remedy—by establishing potential liability—for infringement of core labour rights in public supply chains, in line with the UNGPs. But first I consider whether the Directives themselves provide or require such a remedy in all EU member states.