Direttive sui contratti pubblici e Corte di giustizia: continuità e discontinuità in tema di clausole sociali* = Directives on public contracts and Court of Justice: continuity and discontinuity in terms of social clauses*. WP C.S.D.L.E. “Massimo D’Antona”.IT – 309/2016

Costantini , Stefano (2016) Direttive sui contratti pubblici e Corte di giustizia: continuità e discontinuità in tema di clausole sociali* = Directives on public contracts and Court of Justice: continuity and discontinuity in terms of social clauses*. WP C.S.D.L.E. “Massimo D’Antona”.IT – 309/2016. [Policy Paper]

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Abstract

In the last decade, the public procurement market has been affected by a huge conflict between free market rules, on one hand, and workers protection exigencies, on the other hand. A knotty point is represented by the so called “social clauses”, which can guarantee a minimum level of economic treatment in favour of workers engaged in public contracts and concessions. The European Court of Justice (ECJ), in three different cases (Rüffert, Bundesdruckerei and RegioPost), has faced the problem of social clauses legitimacy: this essay reconstructs ECJ’s reasoning about the compatibility of this type of means with the freedom to provide services, guaranteed by Art. 56 Tfeu. Although the issuing of the new public procurements European Directives (the social clauses are just one of the most important instrument considered by the European Directives nn. 2014/23/Eu, 2014/24/Eu and 2014/25 Eu, to orient public procurements to social aims) and the argumentations developed by ECJ in the RegioPost case, there’re still many doubts (in particular, referring to Italian regulation) about legitimacy of social clauses, especially when the member State where the service, matter of the public contract, is completely done, and the member State where the public contractor is placed, are different.

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