GW Law Faculty Publications & Other Works Faculty Scholarship 2018 Tale of Three Regulatory Regimes -- Dynamic, Distracted and Dysfunctional: Sweden, the United Kingdom and the United States Christopher R. Yukins George Washington University Law School, [email protected] Andrea Sundstrand Stockholm University Michael Bowsher QC King's College London Follow this and additional works at: https://scholarship.law.gwu.edu/faculty_publications Part of the Law Commons Recommended Citation Yukins, Christopher R., Tale of Three Regulatory Regimes -- Dynamic, Distracted and Dysfunctional: Sweden, the United Kingdom and the United States (2018). 2017 Gov. Contr. Yr. Rev. Conf. Br. Int'l 2-1 (2018); GWU Law School Public Law Research Paper No. 2018-08; GWU Legal Studies Research Paper No. 2018-08. Available at SSRN: https://ssrn.com/abstract=3135805 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarly Commons. It has been accepted for inclusion in GW Law Faculty Publications & Other Works by an authorized administrator of Scholarly Commons. For more information, please contact [email protected]. Reprinted from WEST GOVERNMENT CONTRACTS YEAR IN REVIEW COVERING 2017 CONFERENCE BRIEFS, with per- mission of Thomson Reuters. Copyright © 2018. Further use without the permission of West is prohibited. For further information about this publication, please visit west.thomson.com/store, or call 800.328.9352. SESSION 2 - I INTERNATIONAL PROCUREMENT DEVELOPMENTS IN 2017—Part I: A TALE OF THREE REGULATORY REGIMES—DYNAMIC, DISTRACTED AND DYSFUNCTIONAL: SWEDEN, THE UNITED KINGDOM AND THE UNITED STATES Andrea Sundstrand Associate Professor Stockholm University Michael Bowsher QC Monckton Chambers Visiting Professor, King’s College, London Christopher Yukins Professor of Government Procurement Law George Washington University Law School, Washington, D.C. I. INTRODUCTION It was the best of times, it was the worst of times -- a year marked by genuine progress in public procure- ment law in some nations, and partial paralysis in others. This article presents the experience of Sweden (as part of the European Union), the United Kingdom (which is slated soon to depart from the EU, via “Brexit”), and the United States (in the first year of the Trump administration). As the discussion below reflects, while Sweden and other members of the European Union continue to develop a vital and evolving body of public procurement law, the United Kingdom has been distracted by Brexit, and the United States made, in 2017, almost no regulatory progress at all -- though stasis itself yielded some interesting insights. This piece proceeds in three parts, prepared primarily by Andrea Sundstrand (Part II, on Sweden and the European Union), Michael Bowsher (Part III, on the United Kingdom) and Christopher Yukins (Introduction, Part IV on the United States, and Conclusion). II. EXPERIENCE in SWEDEN as A EUROPEAN MEMBER STATE1 In 2017, Sweden implemented the European Union’s public procurement Directives which were adopted in 2014. See, e.g., Andrea Sundstrand, International Procurement Developments in 2016 -- Part III: The European Union’s New Procurement Rules, 2017 Gov’t Contracts Year in Review Briefs 5. Sweden’s imple- mentation reflected longstanding national concerns for protecting labor conditions in public procurement. A. Labor conditions in public procurements in Sweden On January 1, 1994, Sweden enacted its first law on public procurement based on EU Directives. After the act came into force and for a long period of time, the general perception in Sweden, as well as in the EU Commission, was that it was only possible in public procurements to set selection criteria that referred to a financial advantage for the contracting authority (see, for example, Swedish preparatory work 1992/93: 88, p. 52 and the Commission’s Interpretative Communication on the Public Procurement Opportunities, COM (2001) 274 final). This made it less likely that labor conditions would be considered as selection criteria in awarding public contracts. Not even the decision of the European Court of Justice (ECJ), which in its 1988 judgment in Beentjes (C-31/87, EU:C:1988:422) allowed for consideration of labor conditions, convinced attorneys and contracting authorities to consider such criteria possible. Instead it was generally assumed that it was only possible Int'l-2-1 © 2018 Thomson Reuters NOTES in public procurements to have criteria that could somehow be measured economically. In the judgment in Beentjes, the ECJ ruled that it was possible in a public procurement to require employment of long-term unemployed in the performance of a contract, provided that the requirement did not violate general principles of EU law, especially the principle of non-discrimination. The evolution in approach that has been underway since January 1994 has been slow, but Sweden was long on the way to making it easier to impose labor conditions and criteria in public procurements. The next step on that path was the Amsterdam Treaty that came into force in 1999 and brought about changes in the EU, which included the promotion of a high level of employment and gender equality in the European Union. The Treaty of Lisbon entered into force ten years later, in 2009, giving rise to the so-called “Lisbon Strategy.” It stated that the employment rate in the EU would be at least 70 percent by 2010. Regarding procurement rules, the Commission published a number of guid- ances on social procurement in the early 2000s. One of them was the Commis- sion’s guide Buying Social: A Guide to Taking Account of Social Considerations in Public Procurement (2010), http://ec.europa.eu/social/BlobServlet?docId=6457& langId=en. The guide states that the promotion of workers’ rights in accordance with International Labor Organisation (ILO) conventions can be considered as a means of bringing social considerations into public procurements. Id. at 8; see, e.g., Henrik Karl Nielsen, Labour Clauses in Public Contracts: ILO Convention No. 94 in the European Union after RegioPost, 2017 Pub. Proc. L. Rev 201. Several judgments from the ECJ, including Concordia (17 September 2002, C-513/99, EU:C:2002:495), have also paved the way for increased opportunities to have labor conditions in public procurements. In 2017, the Swedish Parliament even adopted a legal provision in the Swedish Procurement Act which required that specific labor conditions be considered in certain public procurements. B. The EU Procurement Rules 1. New EU provisions on labor conditions The European Procurement Directive 2014/24 was adopted in the Spring of 2014, and with it the EU Commission and the Member States took another step forward in terms of labor conditions in public procurements. See, e.g., Abby Semple, Socially Responsible Public Procurement (SRPP) Under EU Law and International Agreements the GPA, CETA and the EU-Ukraine Deep and Comprehensive Free Trade Area, 12 Eur. Proc. & Pub Priv. Part L. Rev. 293 (2017). Article 18.2 of the Directive states: Member States shall take appropriate measures to ensure that in the performance of public contracts economic operators comply with applicable obligations in the fields of 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. In Sweden, some trade unions argued that this article should be interpreted as making it possible in public procurements to require that suppliers awarded public contracts have collective agreements. However, after two investigations, the Swedish Competition Authority announced that it was unlikely to be possible to impose collective agreements on suppliers in public procurements, as it would probably be contrary to the principles of equal treatment and proportionality (see, among other things, Commission Research Report 2015: 2). On the other hand, the investigations revealed that © 2018 Thomson Reuters Int'l-2-2 NOTES it was probably possible to impose labor conditions in public procurements per se, provided that the conditions were compatible with Union law. 2. The Posted Workers Directive 96/71/EC One important aspect of the debate regarding labor conditions was the Posted Workers Directive 96/71/EC, which in most cases prevented contracting authorities from imposing requirements beyond the scope of the so-called hard core work conditions. See European Commission, “Posted Workers,” http://ec.europa.eu/social/main.jsp?catId=471. The Posted Workers Directive 96/71/EC is an EU directive concerned with the free movement of workers within the European Union. The directive applies when a company agrees to provide a service to a client in another Member State and needs to send staff there in order to carry out this work, when a worker is posted in another country through arrangements within a group of companies, with the parent and subsidiaries based in different member states, and when a worker is posted through an agreement between an employer and an employment agency. See Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, http://eur-lex. europa.eu/legal-content/EN/ALL/?uri=CELEX:31996L0071; Clemens Kaupa, Public Procurement, Social Policy and Minimum Wage Regulation for Posted Workers: Towards a More Balanced Socio-Economic Integration Process?, European Papers, Vol. 1, 2016, No. 1, European Forum, Insight